SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Leon Kofman
BEFORE: Justice I.F. Leach
COUNSEL: Jonathan Geiger, for the Crown
Kim Schofield and Catherine Szpulak, for the accused
HEARD: December 16 and 19, 2024
ENDORSEMENT
Introduction
1Leon Kofman, the accused person in this proceeding, is charged with nine offences; three under the Cannabis Act, S.C. 2018, c.16, (“the “CA”), and five under the Criminal Code, R.S.C. 1985, c.C-46, (“the Code”).1 In particular, Mr Kofman is charged with:
a. two counts of unlawfully possessing cannabis for the purpose of distributing it, contrary to s.9(2) of the CA;
b. one count of unlawfully possessing cannabis for the purpose of selling it, contrary to s.10(2) of the CA;
c. three counts of unlicensed possession of a firearm, (a .22 calibre rifle, a 9mm handgun and a Dominion Arms shotgun, respectively), contrary to s.91(1) of the Code;
d. one count of possessing a firearm while prohibited from doing so, (by reason of a weapons prohibition order made pursuant to s.110 of the Code), contrary to s.117.01(1) of the Code;
e. one count of unlicensed, unauthorized and unregistered possession of a restricted firearm, (a Springfield Armory 9mm handgun), contrary s.95(1) of the Code; and
f. one count of unlicensed possession of a prohibited device, (a 16-round magazine), contrary to s.92(2) of the Code.
2The charges stem from evidence discovered during police execution of search warrants, issued pursuant to section 87 of the CA, authorizing police searches of a rural farm property located in the community of Waterford, Ontario, (“the Waterford property”)2, formally owned by an Ontario corporation in respect of which Mr Kofman was and is a director, and a property that was said to be Mr Kofman’s residence located at Unit 71, 1500 Richmond Street, (“Mr Kofman’s residence”), here in the city of London.
3The said warrants apparently were issued on or about October 29, 2021, (the date on which an application and supporting “Information to Obtain” affidavit sworn by Detective Constable or “D.C.” William Crawford were submitted), and were executed simultaneously on November 3, 2021, along with other warrants issued in relation to the same extended police investigation dubbed “Project Gainsborough”. Mr Kofman was arrested in the course of the warrant issued in relation to the Waterford property being executed, when he was located in a residence at that property.
4By way of a pre-trial application, the nature of which was clarified and/or refined through the submissions of counsel, the accused Mr Kofman effectively sought:
i. a finding that the relevant search warrants should not have been issued, (because the sworn “Information To Obtain a Search Warrant” or “ITO” affidavit used by the police to obtain the relevant search warrants, especially after suggested amplification and excision as per authority applicable to such matters, should not be regarded as having contained information sufficient to justify the warrants being issued), such that the resulting searches should be regarded in law as warrantless and unreasonable;
ii. further or in the alternative, a finding that the court should exercise its residual discretion to set aside the said warrants, (even if the ITO affidavit, after amplification and excision, contained information sufficient to otherwise justify the warrants being issued), on the basis of alleged police misconduct entailing subversion of the warrant authorization process, such that the resulting searches should be regarded in law as warrantless and unreasonable;
iii. a finding that there accordingly was a contravention of the rights guaranteed to Mr Kofman by section 8 of the Canadian Charter of Rights and Freedoms, (“the Charter”), which provides that “Everyone has the right to be secure against unreasonable search and seizure”;
iv. a finding that there was an associated contravention of the right guaranteed to Mr Kofman by section 9 of the Charter, which provides that “everyone has the right not to be arbitrarily detained or imprisoned”;3 and
v. a ruling excluding, at trial, pursuant to s.24(2) of the Charter, evidence seized as a result of the alleged contraventions of Mr Kofman’s aforesaid Charter rights,4 evidence of all utterances made by Mr Kofman to the police throughout his interactions with them, and any derivative evidence obtained thereafter.
5In response, it was the Crown’s contention:
a. that the underlying ITO affidavit, even if amplified and/or excised in the manner suggested by counsel for Mr Kofman, provided a more than sufficient basis on which the relevant search warrant authorizations could have been issued, and the resulting searches authorized by those warrants accordingly were reasonable and lawful;
b. that any failings of the police in applying for and securing the relevant search warrants did not entail subversion of the warrant authorization process, or provide any adequate basis for exercise of the court’s residual discretion to set aside such warrants, such that the resulting searches should be regarded in law as warrantless and unreasonable;
c. that the accused accordingly had failed to establish any breach or breaches of the rights guaranteed to the accused by section 8 of the Charter;
d. that the accused therefore similarly had failed to establish that the detention and/or arrest of the accused, ancillary to those legally authorized searches, gave rise to any consequential breach of the rights guaranteed to the accused by section 9 of the Charter; and
e. that, in the alternative, (i.e., if any of the Charter right violations alleged by the accused had been established), the circumstances did not warrant the requested exclusion of evidence pursuant to s.24(2) of the Charter.
6Mindful that a trial readiness conference for this matter was scheduled for 9:30am on March 12, 2025, (in relation to a trial of this matter scheduled to commence on March 17, 2025), I advised counsel via correspondence, sent by email on the afternoon of March 10, 2025, that the accused’s application herein was being dismissed for reasons to follow.
7These are those reasons.
Further background
8The initial application material filed and relied upon by the accused, (apart from the notice of application herein, a supporting factum, a book of authorities, and a supplemental book of authorities), included the following:5
a. a copy of the lengthy 165-page ITO affidavit sworn by D.C. William Crawford on October 29, 2021, (and thereafter submitted to obtain the search warrants challenged by the accused, as well as other warrants), which was:
i. redacted slightly to obscure the first names of apparent minors related to involved persons;
ii. further redacted in part to obscure information indicating or capable of revealing the identity or identities of multiple confidential informants;
iii. shorn of all indicated “tearaway” appendices “A” through “E”, providing further details about the exact information provided by five separate confidential informants, together with further information relating to the credibility of each such confidential informant, (including information relating to his or her reliability, motivation for providing information to the police, track record of information provided by that confidential informant to the police, and his or her criminal record if any), corroboration of information provided by that confidential informant, and the compelling nature of such provided information, as well as confirmation by the confidential informant’s handler that the contents of the tearaway appendix for that confidential informant was accurate and submitted to obtain the search warrants challenged by the accused and other search warrants, redacted in part to obscure information indicating or capable of revealing the identity of a confidential informant;6 but
iv. accompanied by its original Appendix “F”, providing a three-page table setting out details of 23 previous judicial authorizations, issued during the course of the Project Gainsborough investigation;
b. a transcript of a “discovery preliminary hearing” that took place in the Ontario Court of Justice (“OCJ”) before Justice Harris Bentley on March 7, 2023, which included testimony from:
i. Ryan Balazs, a Detective Sergeant with the Ontario Provincial Police, (or “O.P.P.”), who acted as a supervising officer in relation to Project Gainsborough, while also participating directly in some of its surveillance operations; and
ii. Jeffrey Mitchell, an officer with the O.P.P. who acted as an investigating officer in relation to Project Gainsborough, including:
monitoring of electronic surveillance;
participation in a “fly over” operation carried out in relation to a property located at a specified address on “Elginfield Road”,7 (i.e., a literal flight over the property to determine what was observable on that property from the air), on November 2, 2021; and
attendance at Mr Kofman’s residence when the warrant for that property was executed and items therein were located and seized;
c. a transcript of a further “discovery preliminary hearing” that took place in the OCJ before Justice Harris Bentley on April 5, 2023, which included testimony from Steven Hillier, a Detective Constable with the OPP who acted as a surveillance officer and master exhibits officer in relation to Project Gainsborough, including:
i. participation in several days of surveillance conducted in relation to Mr Kofman; and
ii. aerial surveillance that included a “fly over” of the Waterford property on October 13, 2021, wherein video, still images and notes were made in relation to what was observable on that property from the air, with D.C. Hillier thereafter completing a surveillance report in that regard;
d. a “Personal of Interest Profile” prepared by the O.P.P. in relation to Mr Kofman, on August 21, 2020, including his photo, his criminal record, and information about his residence located at Unit 71, 1500 Richmond Street, here in the city of London;
e. a “Location of Interest Report” prepared by the O.P.P. in relation to the Waterford property, including ground level and satellite photos, its mapped location, its ownership by 2705000 Ontario Inc., and a Corporation Profile Report indicating Mr Kofman as a director and officer/treasurer of the corporation, and another individual named Anthony Joel Capin as a director and officer/secretary of the corporation;
f. a “Meeting/Briefing Summary” prepared in relation to a meeting held on October 6, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford), with the report including indications that discussions at the meeting included reference to:
i. surveillance observations of Mr Kofman attending at the Waterford property and another property located at 162 Argyle Avenue in the community of Delhi, Ontario,8 (a location generally described as an “old tobacco plant” with “one massive warehouse”), in respect of which “four licences [for] 1,500 plants” had been registered, with a further task being assigned “to follow up [on] Health Canada licence”;
ii. surveillance of Mr Kofman being conducted by the London Police Service, or “LPS”; and
iii. consideration of obtaining a general warrant in relation to a unit at a Storage Mart facility, at which Mr Kofman had been observed to make a stop with and/or for another male during surveillance operations;
g. an “Investigative Action Report” (or “IAR”) prepared by D.C. Ben Metcalfe, indicating:
i. that on August 16, 2021, he was assigned the task of completing Health Canada checks to determine whether Ryan Kyle and/or various identified individuals, business names and corporate numbers associated with Mr Kyle and those associates, (including Mr Kofman but not 2705000 Ontario Inc.), had obtained or applied for exemptions relating to Psilocybin;
ii. that the task was completed on October 13, 2021; and
iii. that Health Canada had indicated that the individuals or companies in respect of which the checks had been requested were not presently and had not within the previous two years been licenced, authorized or exempted in relation to any regulated activities concerning Psilocybin;
h. another IAR prepared by D.C. Metcalfe, indicating:
i. that on April 26, 2021, he was assigned the task of completing a “Health Canada Check” in relation to the Waterford property;
ii. that the task was completed on May 5, 2021;
iii. that the check had indicated the existence of “1 valid Health Canada licence” for the Waterford property, authorizing the holder of the licence, Sean William Berry, to produce cannabis for his “own medical purposes”, via 133 outdoor plans, and to possess and transport 150 grams of that substance from the production site to the place where he “ordinarily resides”; and
iv. that the aforesaid licence, effective as of August 12, 2019, had an expiry date of February 13, 2021;
i. another IAR prepared by D.C. Metcalfe, indicating:
i. that on September 20, 2021, he had been assigned the task of conducting “Hemp checks” in relation to “multiple targets”, (including Ryan Kyle and other various named individuals “and businesses associated to them”, but without mention of Mr Kofman and/or 2705000 Ontario Inc.), in order to determine whether Health Canada had issued any “Industrial Hemp Licences” to such persons and/or associated “businesses and corporation numbers”;
ii. that the task was completed on October 13, 2021;
iii. that the results of the request submitted to Health Canada “returned negative for Industrial Hemp licencing”; and
iv. an email from Health Canada, sent to D.C. Metcalfe on September 29, 2021, which:
apologized for delays in its response, and explained that the delays were caused in part by the reality that “the Industrial Hemp regulatory framework is not identical to the commercial licencing or the personal registration framework when it comes to disclosure of information and of site information”;
pointed out “the differences in a cannabis licence and an industrial hemp licence”, insofar as, “under the Industrial Hemp regulatory framework, there are no longer federal restrictions as to the location or size of the site where industrial hemp may be cultivated”, although “it is the licence holder’s responsibility to ensure they are compliant with any local rules and regulations”;
noted that “unlike cannabis, the authorization to cultivate industrial hemp is not restricted to specific sites”, with an Industrial Hemp licence being “designed in such a way that a single licence will be able to cover multiple sites and activities”;
noted that there were no longer any restrictions under the Industrial Hemp Regulations in relation to industrial hemp cultivation sites, with it now being the responsibility of licence holders to ensure that they “have the permission to use the land for hemp cultivation”, (if the land is not owned by them), and that their activities “do not contravene any local by-laws”;
noted that, simply put, “the mailing address on the licence may not be the site where cultivation occurs”; and
noted that the holder of an industrial hemp licence nevertheless is obliged to provide the Industrial Hemp Unit (or “IHU”) with notification of certain information within 30 days of “seeding”, including the variety of industrial hemp being cultivated, the number of hectares cultivated for each form of industrial hemp set out in the licence, and the Global Positioning System coordinates for each cultivation site;
j. a “Meeting/Briefing Summary” prepared in relation to a meeting held on October 14, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe participating via teleconference), with the report including indications that discussions at the meeting included:
i. a reference to the “fly over” of the Waterford property described above having been completed, with reported observation of a “large grow” operation involving an estimated 13,000 plants, “mostly harvested”;
ii. an indication by D.C. Metcalfe that the Waterford property currently held a “licence for 133 plants”, whereas the fly over “showed thousands of plants”, the harvest of which possibly had been completed;
iii. an indication received from Detective Sergeant Pollard that Mr Kofman had taken a “stripping machine” to the Waterford property;
iv. a reference by D.C. Harris to the Delhi property and its “large warehouse”;
v. a noted “link” between Mr Kofman and the Delhi property as well; and
vi. an indication by D.C. Metcalfe that he was “waiting on” a request regarding licencing;9 and
k. a “Business of Interest Report – Commercial”, dated January 18, 2022, (and therefore after execution of the disputed warrants on November 3, 2021), authored by D.C. Metcalfe, and prepared in relation to 2705000 Ontario Inc., including references to:
i. the municipal address for that company being located at the Waterford property;
ii. that a return or “Profile Report” in relation to the company, (and attached to the report), indicated that it was “registered to Anthoney (sic) Joel CAPIN and Leon Ibrahim KOFMAN”; and
iii. that an Industrial Hemp licence, issued to 2705000 Ontario Inc., had been seized from the Delhi property, which was described as an “illicit cannabis site”.
9The Crown filed a responding application record, which included the following material:
a. an affidavit affirmed on December 6, 2024, by Kristy Racette, (an analyst working within the litigation support office of the “Operational Support Services of the Controlled Substances and Cannabis Branch” of Health Canada, which indicated and/or confirmed the following:
i. that Ms Racette has access to Health Canada’s record-keeping system for documents related to the issuance of registration certificates, authorizations and licences issued under section 313 of the Cannabis Regulations, (or formerly under section 178 of the now repealed Access to Cannabis for Medical Purposes Regulations, or section 29 of the now repealed Marihuana Medical Access Regulations), and documents related to the issuance of commercial cannabis licences and industrial hemp licences under the CA;
ii. that a diligent search had been conducted for any active industrial hemp licence, medical cannabis registration certificates or commercial licences associated to what I have described herein as the Waterford property, with the said search results indicating:
two expired medical cannabis registration certificates related to the property, (true copies of which were attached to Ms Racette’s affidavit), with those certificates having been issued to Tia Lea Bartolini and Sean William Berry, respectively;
no commercial licences issued by Health Canada to the property under the CA; and
one industrial hemp licence related to the property, (a true copy of which was attached to Ms Racette’s affidavit), with that licence having been issued to 2705000 Ontario Inc., (with the Waterford property being that corporation’s indicated “mailing address”), authorizing the corporation to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches;10
b. a “Firearm Summary Chart” setting out, in a table format, photographs and other information relating to six weapons, including the firearms said to have been located at the Waterford property; and
c. a “Firearms Analyst Report”, dated October 6, 2022, and prepared by Kevin W. Rebertz, (a constable and firearms analyst with the O.P.P.), addressing the classification, firing status and “prohibited firearm” status of one of the firearms said to have been located at the Waterford property, (the “Springfield Armory” handgun), and the “prohibited devices” status of a high capacity magazine of ammunition said to have been located with or near that firearm.
10The application filed by the accused also sought leave to cross-examine D.C. Crawford, as the affiant of the ITO affidavit used to obtain the challenged warrants, and a participant in the Project Gainsborough investigation.
11For reasons to follow, (which will be set forth in a separate endorsement), I denied certain aspects of the request, but granted leave for defence counsel to cross-examine D.C. Crawford in relation to the following matters:
a. “hemp checks conducted” by the police; and
b. the basis of D.C. Crawford’s indicated belief that plants he was describing, in connection with reported observations made during the “fly over” operation conducted in relation to the Waterford property, were “cannabis marihuana plants”, including:
i. whether or not D.C. Crawford was relying on the indications in the surveillance report completed by D.C. Hillier on October 13, 2021, D.C. Crawford’s independent assessment of the photographs depicted at page 75 of the ITO affidavit, and/or on some other basis of information or assessment; and
ii. the extent of D.C. Crawford’s personal ability, (if any), at the time of swearing the ITO affidavit, to differentiate between marihuana cannabis plants and hemp cannabis plants.
12That granting of leave resulted in my being presented with a morning of testimony from D.C. Crawford on December 19, 2024, (reflected in 64 pages of a transcript I requested in relation to the proceedings that day), including testimony relating to further documents that were marked as exhibits for identification, and in some cases numbered exhibits, including:
a. a “Meeting/Briefing Summary” prepared in relation to a meeting held on April 6, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications from D.C. Metcalfe that he was “waiting on hemp returns”, with a “call made to Health Canada” in that regard;
b. a “Meeting/Briefing Summary” prepared in relation to a meeting held on April 13, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications from D.C. Metcalfe that there was “no licencing at Blackwater”, (an apparent reference to another property referred to in the ITO affidavit, and discussed in further detail below, being Apartment 329 at 2250 Blackwater Road, here in the city of London), and that “Hemp and Cannabis are separated”, and “checked separately”;
c. a “Meeting/Briefing Summary” prepared in relation to a meeting held on May 25, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications from D.C. Metcalfe that he had “nothing new” to report, and was “waiting on hemp” information of some kind;
d. a “Meeting/Briefing Summary” prepared in relation to a meeting held on June 22, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications from D.C. Metcalfe in relation to:
i. “Hemp”, and there apparently being “two different sides for Health Canada” in that regard;
ii. “HC”, (presumably Health Canada), apparently being “not overly sure where the hemp is growing”, as it is “up to [a] grower to report back where the locations are”;
iii. a specified address on “Carriage Road” being a “hemp location”; and
iv. D.C. Metcalfe’s indication that “Consideration needs to be made prior to takedown [of] locations”;
e. a “Meeting/Briefing Summary” prepared in relation to a meeting held on June 29, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications of D.C. Metcalfe reporting, inter alia, that:
i. there was “no hemp licence” in relation to a property with a specified address of “643 Railroad”;
ii. that Anthony Joel Capin had an “old licence” to grow “58 plants” at a specified address on “Dublin Drive”; and
iii. that there was “no licence” indicated in relation to Kathleen Curran, (identified as a known associate of Ryan Kyle in the ITO affidavit), or “695 Richmond”, (an apparent reference to another property referred to in the ITO affidavit, and discussed in further detail below, but identified in the ITO affidavit as a condominium more particularly described as Unit 1706, 695 Richmond Street, here in the city of London, confirmed by surveillance and authorized covert entries as a location where illicit cannabis products were being stored and packaged);
f. a “Meeting/Briefing Summary” prepared in relation to a meeting held on September 20, 2021, between some of the officers involved in Project Gainsborough, (including D.C. Crawford and D.C. Metcalfe), with the report including indications:
i. that Detective Sergeant Barkey had discussed surveillance operations in relation to the 695 Richmond Street property and an intended installation of surveillance equipment there, as well as a desire “to get a fresh sample of hemp if possible”; and
ii. that D.C. Metcalfe had reported his submission of a “list of 45 hemp licences to check”, without indication of any further details being discussed or provided in that regard;
g. a copy of the “Surveillance Report” mentioned above that was prepared by D.C. Hillier, and relied upon by D.C. Crawford, (as indicated in his ITO affidavit and confirmed in his cross-examination testimony), in relation to the “fly over” surveillance operation conducted on October 13, 2021, in relation to the Waterford property, with the report including indications that “a large cannabis grow” was observed towards the “south rear portion” of the Waterford property, and still images in that regard; and
h. another IAR prepared by D.C. Metcalfe, indicating:
i. that on October 14, 2021, he had been assigned the task of completing an “Opinion” in relation to the “fly over” operation carried out in relation to the Waterford property, (including his provision of an opinion “on the quantity of plants that the grow site had, and how many were left at the time of the flyover on October 13, 2021”), after his review of videos and still images recorded during that fly over operation;
ii. that the task was completed on October 20, 2021; and
iii. that it was D.C. Metcalfe’s opinion that the videos and images revealed an “outdoor cannabis production site”, whose exact size could not be determined, but which he estimated to involve 8,960 to 11.200 “cannabis plants”, based in part on his experience relating to “other illicit cannabis growing operations” he had attended.
13I nevertheless will defer my further overview and summary of D.C. Crawford’s testimony until further context, necessary to understand the possible import of that testimony, has been provided via my summary of the relevant ITO affidavit, (set forth below), in respect of which D.C. Crawford was being cross-examined.
14Clearly, not all of the above material and information was submitted to the reviewing justice who was asked to issue the disputed warrants, who was only presented with the ITO affidavit sworn by D.C. Crawford, (in its unredacted and complete form, including all of its original appendices), as a proffered adequate basis for issuing the various warrants that were being requested.
15The necessary starting point and central focus of the accused’s Charter application, (insofar as it relates to validity of the disputed warrants that were issued), is the information set forth in that relevant ITO affidavit, the precise content of which speaks for itself.
16I have noted, reviewed and considered the additional material and information outlined above, (and addressed in further detail below), because of its possible relevance to:
a. counsel submissions regarding suggested amplifications and excisions to be made in relation to that ITO affidavit information, when assessing validity of the disputed warrants that were issued; and
b. submissions made by defence counsel asking that the disputed warrants be set aside pursuant to the court’s residual discretion in that regard, (i.e., even if the information set forth in the ITO affidavit as properly amplified and excised otherwise provides adequate grounds for issuing of the warrants), based on alleged police misconduct entailing subversion of the warrant authorization process.
17Before embarking on further discussion and review of the information presented to obtain the disputed warrants, and possible amplification and excision that should be made in that regard, (in light of the further evidence that was provided to me), I think it helpful to first:
a. comment briefly on use of certain terminology in this area; and
b. outline general principles to be borne in mind when approaching such Charter applications challenging the validity of issued search warrants.
Terminology
18In the course of reviewing materials and evidence filed in relation to the accused’s application, and receiving submissions from counsel in that regard, I noted repeated indications that understanding and use of certain terminology relevant to the underlying factual matrix were not always clear and/or accurate.
19In particular, I noted frequent suggestions:
a. that “hemp” was something separate and distinct from “cannabis”;11 and
b. that “marihuana” and “cannabis” are terms entirely synonymous with each other, and perfectly interchangeable.12
20In fact and law, neither suggestion is accurate. In particular:
a. “hemp” and “marihuana” are both “cannabis”, albeit different forms of cannabis;13 and
b. while all “marihuana” is “cannabis”, not all “cannabis” is “marihuana”.
21This endorsement obviously is not the place for an extended discourse on the nature of cannabis in its various forms, including hemp and marihuana. However, to the extent it may help to provide further clarity in relation to such matters, and to readers of this decision:
a. As reflected in the definitions set forth in s.2(1) of the CA, “cannabis” refers to a “cannabis plant”, meaning a plant that belongs to the genus “Cannabis”.
b. Hemp and marihuana are different forms of cannabis, as reflected in both being governed by the CA, and the regulations enacted thereunder. See, for example:
i. subsection.139(1) of the CA, which provides for the making of regulations thereunder, including regulations defining “industrial hemp” for purposes of the Act;
ii. subsection 1(2) of the Industrial Hemp Regulations, SOR/2018-145, which indicates that industrial hemp “means a cannabis plant – or any part of that plant – in which the concentration of THC is 0.3%w/w or less in the flowering heads and leaves”, with s.1(1) of the same regulations indicating that “THC” means “delta-9-tetrahydrocannabinol”, the psychoactive compound or type of chemical found in the cannabis plant primarily responsible for the “high” associated with cannabis; and
iii. subsection 160.1(1) of the CA, which confirms that fresh marihuana and dried marihuana are to be regarded as forms of “cannabis”, as are marihuana plants or seeds.
c. While the Industrial Hemp Regulations deal with the specific licencing of activities relating to hemp, (including its sale, import, export, cultivation, propagation and possession)14, the CA deals more generally with the issue, renewal and/or amendment of licences and permits authorizing the import, export, production, testing, packaging, labelling, sending, delivery, transport, sale, possession or disposal of cannabis or any class of cannabis.15
d. “Illicit cannabis” is defined by the CA as meaning any cannabis that is or was sold, produced or distributed by a person prohibited from doing so under the CA or any provincial Act, or that was imported by a person prohibited from doing so under the CA.16
22With that digression, (which hopefully promotes clarity while also highlighting aspects of confusion which seem to cloud understanding and discussion in this area), I turn next to an overview of the law applicable to such Charter applications challenging the validity of issued search warrants.
General principles – Section 8 of the Charter and prior search authorizations
23In that regard, general principles applicable to section 8 of the Charter, searches conducted pursuant to warrants, and challenges to warrant validity include the following:
a. Pursuant to section 8 of the Charter, everyone has the right to be secure against unreasonable search and seizure. The purpose of the section is to protect individuals from unjustified state intrusions into their privacy.17
b. 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. An unlawful search is presumptively unreasonable.18
c. Any review of a search warrant’s validity begins from a presumption that the warrant is valid.19 The presumption is rebuttable,20 but the onus is on the accused challenging the warrant to establish that the proffered grounds for issuing the warrant were insufficient.21
d. Legislation such as s.87(1) of the CA, authorizing the issuing of a search warrant, requires reasonable grounds as the standard of persuasion to support issuance of a search warrant; i.e., to make issuance of the warrant lawful. Judicially interpreted, the standard is one of credibly-based probability.22
e. From both a common law and constitutional perspective, mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard for issuing a valid search warrant. On the other hand, in addressing the requisite degree of certitude, it must be recognized that the reasonable grounds standard is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted.23 The test is simply whether there was at least some evidence that might reasonably be believed, on the basis of which the authorization could have been issued.24
f. An issuing justice is entitled to draw reasonable inferences from stated facts, and the affiant of an “ITO” affidavit is not obliged to underline the obvious. Moreover, some deference should be paid to the ability of a trained and experienced police officer to draw inferences and make deductions which might well elude an untrained and/or inexperienced person. It also should be remembered that an ITO affidavit is not a Crown brief, and the affiant is not obliged to record every minute step taken in the course of an investigation.25
g. For lawful issuance of a warrant, it is necessary, but not sufficient, that the affiant of an ITO affidavit subjectively or personally believe in the accuracy and credibility of the grounds of belief. Lawful issuance of a warrant also requires that reasonable grounds exist from an objective perspective; i.e., that a reasonable person, standing in the shoes of the police officer, (and therefore possessed of that officer’s training and experience), would believe that the facts probably exist as asserted, and draw the inferences therefrom submitted by the affiant.26 In that regard:
i. As the proper focus in relation to applications challenging the adequacy of grounds proffered in an ITO affidavit to obtain a warrant is on the honesty and reasonableness of the affiant’s belief about the existence of the requisite grounds, the affidavit is tested on what the affiant knew or ought to have known at the time it was sworn, and not on the ultimate accuracy of the information upon which the affiant relies.27
ii. An error or omission in an ITO affidavit accordingly is not relevant if the affiant, swearing to an honest belief in the information being presented to the issuing justice, could not reasonably have known of the error or omission when the affidavit was sworn and submitted.28 In that regard, while such an affiant may not ignore signs that other officers may be misleading them or omitting material information, ITO affiants do not need to second-guess information provided to them by other officers and conduct their own investigation in that regard if there is no indication that anything is amiss.29
iii. Reasonable grounds can co-exist with exculpatory possibilities. To hold otherwise effectively would be to insist on the standard of proof beyond a reasonable doubt to obtain a search warrant, when “reasonable and probable grounds” is a threshold investigative standard. Again, that standard requires only a “reasonable” or “credibly-based” probability; a standard even below the balance of probabilities.30
iv. It also should be remembered that the underlying issues focus on a search, not an arrest, and that having regard to the usual statutory requirements for issuing a warrant, the relevant issue is not whether there were reasonable and probable grounds to believe that the accused was committing a crime at a specified location in respect of which a warrant is requested. No individual need to be linked to the alleged crime for a search warrant to issue. The material inquiry is whether the affiant had reasonable and probable grounds to believe that an offence had occurred, and that evidence of the offence would be found at the specified location.31
h. In reviewing the sufficiency of a warrant application, the test is whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could have issued. In particular, the question is not whether the reviewing court itself would have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.32
i. The reviewing court does not undertake its review solely on the basis of the ITO affidavit as it was presented to the justice who issued the warrant, if exclusions and amplifications are necessary and appropriate. In particular, an ITO affiant must present all material facts, whether favourable to issuing of a warrant or not, (i.e., presenting the facts accurately and fairly, from the perspective of both sides), and where full and frank disclosure has not been made, (e.g., where evidence is led in support of assertions that the record placed before the issuing justice did not accurately reflect what the ITO affiant knew or ought to have known at the time the warrant was sworn), a reviewing court will “correct” the ITO affidavit to achieve full and frank disclosure. In particular:
i. Erroneous information in an ITO affidavit that should not have been included will be excised.
ii. Erroneous information that would have been appropriate for inclusion in the ITO affidavit if presented accurately sometimes will be corrected by “amplification”, (i.e., to add information that should have been disclosed in order to give an accurate picture or replace mistakenly inaccurate information with accurate information), so that it can be considered during the sufficiency review. In particular:
if material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO affidavit must be amplified to include it; and
if information that could advance the warrant application has been omitted, amplification of the ITO affidavit to include it should be permitted only if the error in not making full and frank disclosure in that regard is a minor and technical error made in good faith when preparing the ITO affidavit, (as opposed to a deliberate attempt to mislead the issuing justice), while bearing in mind:
a. that characterization of the error as minor and technical turns on its nature and not the importance of the topic to which the error relates; and
b. that amplification evidence is not a means for police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.
iii. Once the reviewing court has corrected the ITO affidavit to achieve the full and frank disclosure that should have been made when the warrant was sought, it then determines, on the basis of that corrected ITO affidavit, whether the warrant properly could have issued had such full and frank disclosure been made. In particular, the reviewing court then engages in an analysis of the “corrected” ITO affidavit to determine whether sufficient reliable information remains upon which the search authority could be grounded.33
j. Again, however, the role of a judge reviewing the validity of a search warrant is limited. The review is not a hearing de novo, and the reviewing judge does not substitute his or her view for that of the authorizing justice. Nor is the review to take on the markings of a trial, where the truth of the allegations is explored. If, based on the record which was before the authorizing justice, (taking into account any appropriate excising of erroneous information and/or proper amplification on the review), the reviewing judge concludes that the authorizing justice could have granted the authorization, then he or she should not interfere. The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the reviewing justice.34 In that regard, it also should be remembered:
i. that a review of a search warrant is not an exercise in examining the conduct of police with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct on trial rather than the sufficiency of the evidence proffered in support of a warrant application;35
ii. that police officers are not legal draftspersons, and flaws in an ITO affidavit are to be expected, but the issue to be determined should remained focused on whether the core substance of an ITO affidavit could support issuance of a warrant;36
iii. that even where it has been established that information in an ITO affidavit is inaccurate or omits material facts, it does not follow that the statutory requirements for issuing a search warrant have not been met;37 and
iv. that errors or omissions in an ITO affidavit, whether fraudulent or inadvertent, are not a sufficient basis on their own to find bad faith and/or set aside a warrant.38
k. In determining whether reasonable and probable grounds exist to carry out a search, police are entitled to consider hearsay information, and officers not infrequently rely upon hearsay information received from a confidential informant. General principles in that regard include the following:
i. Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient.39
ii. In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds, and justify a warranted search), reliability of a “tip” is to be assessed by recourse to “the totality of the circumstances”. Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two.40
iii. In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current;41 whether it goes beyond “mere rumour or gossip” and/or “bald conclusory statements” to provide specific information and details; and the informant’s source of knowledge or basis for his or her assertions, with first-hand or direct knowledge of the relevant facts being more compelling. The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant’s information is diminished by an absence of any sense as to how the informant acquired his or her information.42 A tip can be compelling even if it contains some inaccuracies.43
iv. In determining whether such information is “credible”, courts have regard to considerations such as: whether the informant is anonymous or known and identified, which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police; the basis on which the informant provides information, with first-hand knowledge being more credible; whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether the informant is an “untried” and “untested” source, or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past.44
v. In determining whether such information is “corroborated”, courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant’s tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater.45
l. Reputation alone will never provide reasonable grounds for issuing a warrant, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, in which case its veracity cannot be assumed.46
m. Although it may be convenient to discuss separately the different pieces or types of evidence relied upon to justify issuing of the warrant, it is settled law that, in assessing the sufficiency of grounds offered, a reviewing court must assess those grounds in their totality. The appropriate approach for judicial review of an ITO affidavit is scrutiny of the whole document in its entirety, rather than a limited focus upon isolated passages or paragraphs.47
24The above principles and procedures are applied to determine the validity of a challenged search warrant, in terms of whether the warrant was properly issued.
25However, other appellate authority has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police misconduct has “subverted” the preauthorization process through “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”.48 In that regard:
a. In this context, the term “subversion” connotes undermining, corrupting, weakening, destroying or disrupting a system or process; i.e., in plain terms, an abuse of the pre-authorization process by the sort of non-disclosure, misleading disclosure or their like described above.49
b. Appellate courts recognizing the existence of such a residual discretion nevertheless have emphasized that the standard to be met to invoke the discretion is high, with some insisting that the conduct amount to an abuse of process.50
c. While there may be cases where a lack of care will justify setting aside an otherwise valid warrant, our Court of Appeal has emphasized that the carelessness in question must be “sufficiently serious” for a court to exercise its residual discretion in that regard.51 It also should be remembered that the residual discretion exists to prevent subversion of the pre-authorization process, and not to punish the police or send them a message that carelessness or negligence will not be tolerated; e.g., in cases where misstatements in an ITO affidavit were not deliberate, fraudulent or intentionally misleading, or accompanied by indications that the ITO affiant proceeded in an offhanded or cavalier manner, or in bad faith.52
26With all of the above principles and considerations in mind, I turned to consideration of the ITO affidavit submitted in this case to obtain the challenged warrants issued in relation to Mr Kofman’s residence and the Waterford property, and the additional evidence presented in support of suggested excisions and amplifications in that regard.
Overview of ITO affidavit evidence and further evidence
27As noted above, the relevant ITO affidavit in this case, (even in its redacted and truncated form), is of extraordinary length, and it sets out copious amounts of information. I have reviewed and considered all of that content in detail, and my failure to mention any particular aspects of that content in these reasons should not suggest otherwise. Practical realities prevent a detailed summary of the document in its entirety, and I therefore will outline what I consider to be its more relevant aspects.
28Having said that, it nevertheless also would be inappropriate to focus exclusively, (as defence counsel generally seemed inclined to do), on those aspects of the ITO affidavit that expressly mention Mr Kofman, his residence, and the Waterford and Delhi properties associated with the corporation, (2507000 Ontario Inc.), in respect of which Mr Kofman is an officer and/or director. Without limiting the generality of the foregoing:
a. As noted above, in assessing the sufficiency of grounds offered to obtain a search warrant, a reviewing court must assess those grounds in their entirety; i.e., scrutinizing an ITO affidavit in its entirety, (with appropriate excisions and amplifications if/as necessary, pursuant to the process discussed earlier), instead of focusing in a more limited way on isolated passages or paragraphs of that ITO affidavit.
b. In my view, doing so is particularly important in this case, as information proffered in the ITO affidavit that may not expressly mention Mr Kofman nevertheless provides significant context for considering the import of observations and other information specifically referring to Mr Kofman, his residence, and the Waterford and Delhi properties apparently associated with the numbered corporation in which he has an interest.
29With the above caveats and considerations in mind, information presented in the ITO affidavit sworn by D.C. Crawford included, but most certainly was not limited to, the following:
a. The affiant, D.C. Crawford, is an officer with considerable training and experience in criminal investigation, and the investigation of drug-related offences in particular. Without limiting the generality of the foregoing, by and at the time of his swearing the relevant ITO affidavit on October 29, 2021, the detective:
i. had been a police officer with the O.P.P. for more than 16 years, and for more than eight years had been assigned to the O.P.P.’s Drug Enforcement Unit and/or Organized Crime Enforcement Bureau, (after the former’s merger with the latter), and its Organized Crime Unit in particular;
ii. had focused his time on the investigation of drug offences, organized crime groups and clandestine drug operations, including surveillance, handling undercover operators and acting as an undercover operator himself, handling police agents and confidential informants, acting as an expert drug witness, and addressing judicial authorization applications and the service of warrants;
iii. had become familiar with common methods used by drug traffickers to distribute drugs, from those distributing at a street level up to and including drug distribution at the multi-kilogram level;
iv. had been actively involved with “Project Gainsborough”, an extensive police investigation lasting over a year that was focused on a suspected drug trafficking network, involving numerous people, operating in and around the area of London, Ontario; and
v. nevertheless necessarily had received and relied upon information provided by other police officers involved in Project Gainsborough when preparing his ITO affidavit offered in support of a request for numerous search warrants.
b. The catalyst for “Project Gainsborough” was police receipt of information from numerous confidential informants; individuals who came forward to provide details indicating that Ryan Kyle and his associates, (including six named individuals that included Mr Kofman), were involved in illegal drug trafficking. Such trafficking was said to include the trafficking of cocaine at the kilogram level, as well as the production, distribution and sale of large quantities of cannabis. Those indications in turn led to police investigation to determine whether such indications could be corroborated. The results of that initial investigation then led to further observations and information related to such illegal drug trafficking, and the involvement of further individuals in that regard.
c. The varied methods of investigation employed by the police, over the course of the ensuing extensive and prolonged investigation that came to be known as Project Gainsborough, included:
i. use of confidential informants;
ii. physical surveillance, including ground level operations but also aerial “fly over” operations in relation to certain properties;
iii. covert entries into numerous locations, (on multiple occasions in relation to some properties), as well as vehicles, pursuant to general warrant authorizations;
iv. interception of communications and monitoring of other activity via “wiretaps”, video probes, audio probes and vehicle tracking devices installed at various locations and in various vehicles, pursuant to omnibus and other authorizations;
v. undercover officers acting as purchasers of illicit cannabis products; and
vi. reliance on records and/or other information maintained by various entities, (including various provincial ministries and Health Canada), relating to the ownership and/or occupation of real estate, corporate filings, and licensing related to cannabis production, distribution and sale.
d. The information gleaned from the Project Gainsborough investigation included a multitude of indications that Ryan Kyle was actively involved in extensive drug trafficking, and was interacting with numerous individuals and attending various locations for that purpose. Detailed specifics in that regard were set forth in the ITO affidavit, but only by way of general description for present purposes:
i. At least four different confidential informants separately provided detailed information indicating, inter alia, that Mr Kyle was actively trafficking cocaine and illicit cannabis. Such information included:
indications from “Source #1” that Mr Kyle was selling cocaine at the kilogram level and cannabis at the pound level, which included indications about pricing and methods, and Mr Kyle’s involvement in the production and sale of cannabis;
indications from “Source #2” that Mr Kyle was selling at lot of cocaine at the kilogram level and large amounts of marihuana;
indications from “Source #3” that Mr Kyle was a kilogram level cocaine trafficker, and selling large quantities of cannabis; and
indications from “Source #4” that Mr Kyle was a multi-kilogram cocaine trafficker, and associated to a medical marihuana company.
ii. Surveillance operations confirmed that Mr Kyle was interacting with a number of persons whom the confidential informants had identified as associates of Mr Kyle involved in his drug trafficking operations, including “George” or “Jorge” Godoy-Velasquez, Thomas McHugh and Mr Kofman.
iii. Surveillance observations and follow up investigation indicated that Mr Kyle frequently engaged in brief visits to various locations and/or brief interactions with others that often involved Mr Kyle giving/delivering or receiving/retrieving items in a manner indicative of and/or consistent with drug trafficking activity, (e.g., exchanging bags in numerous parking lot and roadside locations with a variety of different individuals), with a number of subsequent authorized police searches or police interception of items providing apparent confirmation that the items included cannabis, cannabis concentrates, psilocybin and cocaine.
iv. Mr Kyle was also seen purchasing a “money counter” used to count large quantities of cash, indicating to police that Mr Kyle was in possession of such large quantities of cash.
v. Communications intercepted via wiretap authorizations and surveillance observations indicated that Mr Kyle borrowed a vehicle and then entrusted it to others, including Vernon Jackson, who drove the vehicle from Ontario to Quebec at Mr Kyle’s direction, stopping at five illegal cannabis businesses along the way, and carrying boxes and bags into some of those businesses.
vi. Surveillance observations, and a number of general warrants executed in relation to Mr Kyle’s Dodge Ram vehicle, (resulting in the location of various items of interest therein), provided numerous indications that the vehicle was being used in connection with drug trafficking. For example:
Mr Kyle usually drove the vehicle to and from the many suspected drug trafficking visits and interactions noted above, exchanging items that were removed from or placed into the front and rear of the vehicle.
When Mr Kyle was arrested for impaired driving and his Dodge Ram vehicle was towed, a police search of the vehicle conducted pursuant to a general warrant revealed the presence therein of three cellular phones, (two of which were turned on), and a handwritten document listing various names, (some of which were other persons of interest in the Project Gainsborough investigation), and associated dollar figure amounts totalling $533,200.
When Mr Kyle stayed overnight in Toronto after making short stops and engaging in a parking lot meeting, a police search of the Dodge Ram vehicle disclosed a small white box, observed during earlier surveillance, containing a white substance believed to be approximately 9 ounces of cocaine; a box which Mr Kyle was seen delivering to the London residence of Thomas McHugh the following day.
An authorized audio probe inserted by the police in the vehicle confirmed that Mr Kyle was making calls from the vehicle, (through a web-based application rather than “normal” phone communication), indicating that he was making various drug-related calls from his vehicle, (e.g., indicating that he was en route to making drug deliveries, and discussing “Eye of the Medicine Man” and “Happy Pig” cannabis products that he was distributing), and negotiating drug transactions with an individual who had entered the vehicle to purchase drugs.
vii. Surveillance included observations of Mr Kyle and visitors to his home, (including Mr Godoy-Velasquez), repeatedly carrying bags and boxes in and/or out of Mr Kyle’s residence, located at a specified address on Silverfox Drive here in the city of London.
viii. Surveillance observations, tracking device information, audio and video probes, and further follow up investigation, (including authorized covert entries), indicated and confirmed that Mr Kyle also repeatedly was attending a number of specific locations used to store, process and/or package illicit cannabis and cannabis products/items. In that regard:
- One such location was a portion of a commercial building identified by its municipal address as 23139 Highbury Avenue in Bryanston, Ontario, (a small community located to the north of the city of London), hereinafter referred to as “the Bryanston property”. In that regard:
a. Queries conducted with Health Canada confirmed that the property was not licenced for the legal production, distribution or sale of cannabis.
b. Three authorized covert entries therein by police repeatedly confirmed that the Bryanston property was being used to house large quantities of cannabis marihuana, cannabis extraction equipment, cannabis processing equipment and cannabis packing material. Such items located, during such covert entries, included:
i. wooden drying racks filled with hanging cannabis plants, and sometimes as many as 13,000 such plants;
ii. cannabis bud stored in baskets, totes and 15 garbage bins, as well as 44 screen racks of cannabis bud;
iii. numerous large landscape material bags, (50-60 during one covert entry and 21 during another covert entry), that were filled with cannabis, (predominately cannabis “shake”), with handwriting on their exterior indicating that each bag had a weight of “110kg”;
iv. a further 48 garbage bags filled with cannabis;
v. large “zip top” bags containing cannabis resin;
vi. multiple sheets of cannabis resin laying stacked on top of each other, inside two ovens;
vii. various other tools, equipment and containers used to process cannabis and produce cannabis resin, including ventilation equipment, a hydraulic press, a large industrial digital scale, a vacuum sealing appliance, cannabis resin extraction equipment attached to cylinders filled with butane, and a “Batch One” cannabis bud trimmer that was located immediately adjacent to such illicit cannabis extraction equipment;53 and
viii. various other items apparently used to package cannabis, including food saver bags, Ziplok bags and a stack of empty garbage bags.
c. Surveillance operations and vehicle tracking data showed Mr Kyle and one of his associates named Jorge Godoy-Velasquez, (whom police believed to be Mr Kyle’s closest drug trafficking associate, based on other information set forth in the ITO affidavit, including communications intercepted via wiretap authorizations, and police observations of Mr Godoy-Velasquez apparently engaging in illicit drug transactions and movement of objects to and from locations confirmed to be locations where illicit cannabis was being stored, processed and packaged), engaging in suspicious meetings, before and after their attendance at the Bryanston property, which the police believed to be connected with drug trafficking activity.
d. Surveillance observations indicated that Mr Kyle and Mr Godoy-Velasquez drove a rented box truck to transport substantial cargo, (requiring a forklift to unload it), from the Bryanston property to a specified Brampton location in December of 2020. Authorized tracking device information indicated that Mr Kyle visited that Brampton location at least eleven times between December of 2020 and August 2021, and that Mr Godoy-Velasquez visited the Brampton location on at least two occasions between December 2020 and September 2021.
e. Police surveillance in May of 2021 included observations of Mr Godoy-Velasquez towing a trailer from the Bryanston property and thereafter attending several locations in London and the surrounding area before proceeding to his home.
f. In September of 2021, Mr Godoy-Velasquez also rented a van to attend at the Bryanston property before travelling to the Brampton location again, after also stopping at a location on Blackwater Road, London, described in further detail below.
g. Surveillance observations, intercepted communications between Mr Kyle and Mr Godoy-Velasquez, and a search warrant executed in Brampton, also indicated and confirmed that approximately 3,100 pounds of cannabis, (requiring a fork lift for loading and unloading), were transported from the Bryanston property to another illicit cannabis storage and processing location in Brampton in a shipment made via a rented cargo truck, driven by Mr Godoy-Velasquez, in October of 2021.
- Another such location was a condominium identified by its municipal address as Unit 1706, 695 Richmond Street, here in the city of London, which I mentioned earlier in these reasons and will refer to hereinafter as “695 Richmond”. In that regard:
a. Queries conducted with Health Canada confirmed that the property was not licenced for the legal production, distribution or sale of cannabis.
b. Mr Kyle was seen not only repeatedly attending the property, but also carrying boxes, bags and other items in and out of the property, before departing from 695 Richmond to engage in a number of brief parking lot interactions and delivery of such boxes with different individuals which the police considered indicative of drug transactions.
c. Five authorized covert entries therein by police repeatedly confirmed that 695 Richmond was not being used as a residence, (e.g., insofar as there was a general absence of clothing, food and/or hygiene products consistent with habitation), but for the purpose of storing, packaging and labelling a variety of items related to cocaine and cannabis. Such items, located during such covert entries, included:
i. a small bag containing approximately one gram of cocaine;
ii. a digital scale with white powder on it;
iii. refrigerated sheets of cannabis resin;
iv. packages of cannabis “shatter”, a form of cannabis resin or concentrate;
v. packages of cannabis shatter with labels on them displaying the names “Happy Pig Bubba Kush”;
vi. two “pizza boxes” containing cannabis shatter, (one of which was labelled “Ryan”);
vii. a tote labelled “Hamilton”, with eight cardboard flats inside, each containing small plastic containers labelled “Happy Pig Caviar 2G Real McCoy”, believed to contain cannabis resin;
viii. additional sheets of cannabis shatter/resin, stacked on top of each other and separated by sheets of wax paper;
ix. additional totes containing packages of cannabis resin/shatter separated into 1 gram packages and labelled as “Happy Pig”;
x. labels reading “Stoni Cannabis”;
xi. an additional small bag of cocaine;
xii. further stacks of cannabis resin separated with sheets of wax paper;
xiii. a brown box containing additional “Stoni Cannabis” labels and pre-packaged shatter containers labelled “Happy Pig” and “Eye of the Medicine Man”;
xiv. another small bag containing approximately 0.24 grams of cocaine; and
xv. pre-packaged containers filled with cannabis resin.
d. Via authorized probes installed in the condominium unit, police were able to witness an interaction therein between Mr Kyle and another individual named Kathleen Curran, wherein Mr Kyle asked Ms Curran to prepare 1000 “packages” for the following Saturday, and she thereafter was seen to carry a tray or flat box into the living room, place it on a table, and begin packaging cannabis products.
- Another such location was an apartment (and its associated storage unit in the same building) identified by its municipal address as 329-2250 Blackwater Road, here in the city of London, also mentioned earlier in these reasons, and which I will refer to hereinafter as “2250 Blackwater”. In that regard:
a. Queries conducted with Health Canada confirmed that the property was not licenced for the legal production, distribution or sale of cannabis.
b. Police review of video of the relevant building’s common areas showed Mr Kyle and Mr Godoy-Velasquez frequently attending the apartment, often carrying boxes, bags and other items, (including large bags and cardboard boxes approximately one foot by one and a half feet, and approximately three feet long, two feet wide and one foot deep, and a larger tote), in and/or out of the apartment.
c. Surveillance observations witnessed Mr Kyle leaving 2250 Blackwater with boxes to then travel immediately to brief roadside and parking lot transactions with individuals, which were believed to be drug transactions.
d. Surveillance observations witnessed Mr Godoy-Velasquez leaving 2250 Blackwater with a cardboard box that he transported and delivered to a female, who was identified through later police surveillance and other investigation to be Deborah Watson, who was assisting in distributing “Stoni Cannabis” products from a Hamilton storage facility to delivery drivers.
e. Surveillance observations also witnessed the retrieval of s large box from 2250 Blackwater by Kristine Ferris-Smith and Brittany Rutledge, who were assisting with the distribution of “Stoni Cannabis” products to delivery drivers in London, Paris and Hamilton.
f. Five authorized covert entries therein by police repeatedly confirmed that 2250 Blackwater was not being used as a residence, (e.g., insofar as there was very little furniture or food therein, and no television, computer or other electronic devices), but for the purpose of storing, packaging, labelling and coordinating the distribution of a variety of items related to cannabis. Such items, located during such covert entries, included:
i. boxes within the apartment’s storage unit containing bottles labelled “Happy Pig” filled with an oil substance and marked as “CBD” oil;
ii. multiple edible cannabis products, packaged dried cannabis bud, and rolled cannabis cigarettes, with the cannabis products mostly bundled together in predetermined quantities and held together with elastic bands;
iii. merchandise, (including clothing, lighters and advertising materials such as cardboard flyers), displaying the brand name “Stoni Cannabis”;
iv. containers of cannabis resin, many of which were labelled as having 250 grams of cannabis resin inside;
v. numerous vials of THC oil;
vi. ten vacuum sealed bags of cannabis bud;
vii. cannibis bud;
viii. additional cannabis resin;
ix. a digital scale;
x. a document displaying financial information, showing monthly expenses and revenue under the headings “London monthly numbers” and “Hamilton monthly numbers”;
xi. more boxes holding containers of illicit cannabis CBD products;
xii. additional large quantities of various types of packaged illicit cannabis resin, shatter, cannabis bud and distillate;
xiii. psilocybin and psilocybin capsules; and
xiv. additional flyers and advertising material for “Stoni Cannabis”.
g. Pursuant to video and audio probes installed via a wiretap authorization, police also were able to witness:
i. Mr Kyle and Mr Godoy-Velasquez attending the property frequently;
ii. Mr Kyle directing two of his sons to package such illicit cannabis products within the apartment;
iii. discussions regarding the “Stoni Cannabis” operation; and
iv. certain identified distributors of “Stoni Cannabis” products, (e.g., Brittany Rutledge and Kristine Ferris-Smith), attending at the location to retrieve bags from the apartment, bring “shatter” they had packaged (as indicated in other intercepted communications) up to the apartment at Mr Kyle’s request/direction, and receive cash payment for their efforts.
h. Surveillance included observations showing Mr Kyle stopping at 2250 Blackwater, and carrying a bag into and then out of that location, before then travelling to attend a number of brief parking lot interactions with other individuals and to exchange items, which were believed to be drug transactions.
ix. The results of additional surveillance, authorized tracking device information, authorized intercepted communications, authorized covert entries and undercover officer investigation, (described in considerable detail in the ITO affidavit), reinforced a belief that Mr Kyle, Mr Godoy-Velasquez and their associates were engaged in significant drug trafficking. Simply by way of general description and example, and without attempting any exhaustive summary of police information in that regard:
The police were able to confirm confidential informant information that Jonathan Gignac, another of Mr Kyle’s associates, was trafficking significant quantities of cocaine at Mr Kyle’s direction; e.g., using a Storage Mart unit to house multiple kilograms of cocaine, and a hydraulic press and cutting agent used to repress and package cocaine from its original larger brick packaging, before it was removed by Gignac for redistribution elsewhere.
The widespread operation and geographic reach of the illicit “Stoni Cannabis” distribution network was confirmed by:
a. numerous intercepted communications wherein Mr Kyle and Mr Godoy-Velasquez were discussing their cannabis distribution network, and “Stoni Cannabis” personnel and operations;
b. further intercepted communications wherein Mr Kyle and Mr Godoy-Velasquez were heard discussing drug distribution with other individuals, including individuals apparently working for and within the illicit “Stoni Cannabis” distribution network;
c. surveillance observations and other investigation showing Mr Kyle and Mr Godoy-Velasquez meeting with various individuals employed by “Stoni Cannabis”, and tracking the movement of illicit “Stoni Cannabis” products within the London and St Thomas area, and from London and St Thomas to various other locations in Ontario, (e.g., Paris and Hamilton), via exchanges between various distributors working for “Stoni Cannabis”, (including Delmy Caballero Canales De Jua, Deborah Watson, Kristine Ferris-Smith and Brittany Rutledge), and various delivery drivers working for “Stoni Cannabis” in and around London, Kitchener and Hamilton;
d. seizure of a large quantity of cannabis products with “Stoni Cannabis” labels, (i.e., bags of cannabis, cannabis bud, 710 edible cannabis gummies, and 265 grams of cannabis resin), during a traffic stop of a specified “Stoni Cannabis” delivery driver in Hamilton;
e. communications by Mr Godoy-Velasquez intercepted via authorization, and surveillance operations, confirming the existence of another storage location at a specified address in Etobicoke for “Stoni Cannabis” products, from which delivery drivers in Toronto were directed to pick up such products and did pick up such products;
f. the ability of undercover police officers, posing as customers, to conduct purchases of illicit “Stoni Cannabis” products in London, Kitchener, Hamilton and Toronto from an illegal but well-coordinated cannabis delivery service, involving the provision of cannabis products to delivery drivers; and
g. communications intercepted via authorization and surveillance observations confirming that, at the direction of Mr Godoy-Velasquez, Brittany Rutledge and Kristine Ferris-Smith shipped a box of illicit “Stoni Cannabis” products via Purolator to a specified address in West Kelowna, British Columbia, under misleading descriptions applied to the exterior of the relevant delivery box.
- In October of 2021, the police intercepted communications between Mr Kyle and a number of different individuals discussing the manipulation of documents to have illicit cannabis attributed to valid cannabis licences, and otherwise use/abuse valid cannabis licences not truly associated with the illicit cannabis products Mr Kyle was selling. In that regard, D.C. Crawford indicated and emphasized his belief that Mr Kyle was exploiting his relationships with licensed producers of cannabis to facilitate his illegal cannabis distribution activities.
e. Through the same varied methods of police investigation, the police also gleaned the information relating to Mr Kofman, and indications of his possible involvement in the drug trafficking operation being directed by Mr Kyle and the person who appeared to be Mr Kyle’s principal associate in that regard; i.e., Mr Godoy-Velasquez. Such information and indications, set forth in the ITO affidavit, included the following:
i. One of the confidential informants who provided police with information in relation to Project Gainsborough, (i.e., “Source #1), told the police that “Leon Kofman sells cocaine and cannabis for Ryan Kyle”.54
ii. Mr Kofman was said to have no occupation known to the police.
iii. On September 18, 2020, police surveillance included observations of Mr Kyle apparently stopping at the residence of Mr Kofman for four minutes before thereafter driving directly to Toronto, where Mr Kyle engaged in an interaction believed to be indicative of a roadside drug transaction; i.e., exiting his vehicle, standing outside on a street corner while holding a bag, and placing that bag in a Land Rover that stopped in front of him while engaging in a brief conversation with the vehicle’s occupants, before walking away from the Land Rover holding a smaller bag.55
iv. On April 15, 2021, police surveillance included observations that Mr Kyle, Mr Godoy-Velasquez and other males attended 2250 Blackwater, (where boxes were carried into and out of the property, and Mr Godoy-Velasquez carried a large black bag out of 2250 Blackwater that was placed in his vehicle), before Mr Godoy-Velasquez, (after making further stops at the Bryanston property, a hardware store and a “club” in Hamilton), drove with Zane Watson, (another male whom police believed to be involved with the illegal distribution of cannabis and a part owner of the illicit “Stoni Cannabis” location in Hamilton, based on other indicated police surveillance and communications intercepted through wiretap authorizations), to the Waterford property; i.e., the rural farm property owned by Mr Kofman’s corporation.
v. On May 13, 2021, police surveillance included observations of Mr Godoy-Velasquez attending at the Bryanston property before proceeding directly to Mr Kofman’s residence, and then, (after a stop at an auto mechanic business), proceeding to 2250 Blackwater.56
vi. On July 24, 2021, police surveillance included observations of a number of individuals, (including Mr Kyle, Mr Godoy-Velasquez), attending at Mr Kyle’s residence and placing items in the bed of Mr Kyle’s Dodge Ram vehicle before Mr Kyle, (after making a stop to pick up another individual), thereafter went to Mr Kofman’s residence, entered the residence, and exited the residence three minutes later carrying three cardboard boxes that were placed inside Mr Kyle’s vehicle; observations which the police believed to be indicative of a drug transaction between Mr Kyle and Mr Kofman. Mr Kyle and his passenger then proceeded, (after stops to transfer the items from the bed of the vehicle into a dumpster and eat at a restaurant), to 695 Richmond, where Mr Kyle, (while his passenger waited in his vehicle), took one of the boxes retrieved from Mr Kofman’s residence inside, before exiting 695 Richmond without that box and carrying a weighted white plastic bag.57 Mr Kyle, (after dropping off his passenger), then returned to his residence where he carried the other two boxes retrieved from Mr Kofman’s residence, and the white plastic bag retrieved from 695 Richmond, into Mr Kyle’s residence.
vii. On August 16, 2021, police surveillance included observations of Mr Kyle travelling from his residence to 2250 Blackwater. Through the use of an authorized video and audio installed therein, police then witnessed Mr Kyle, while inside 2250 Blackwater, engage in a cell phone conversation with an unidentified male; a conversation wherein Mr Kyle agreed to bring illicit cannabis products to the unidentified male in exchange for $500.00,58 and indicated that he would be there shortly. Mr Kyle thereafter travelled from 2250 Blackwater directly to Mr Kofman’s residence, where Mr Kyle stopped for only three minutes, (engaging in what the police believed to be a drug transaction), before travelling on to Brampton for a meeting that lasted approximately 20 minutes.
viii. On September 8, 2021, police surveillance included observations of Mr Kyle engaging in what the police believed to be drug transactions before proceeding to Mr Kofman’s residence, where Mr Kyle entered and exited “moments later” with a brown cardboard box that Mr Kyle placed in his vehicle and thereafter, (after stopping for a meeting at a fast-food restaurant), transported to and into his residence. Police believed that the box Mr Kyle retrieved from Mr Kofman’s residence contained illicit cannabis.
ix. On September 22, 2021, police surveillance included observations of Mr Kyle entering a vehicle being driven by Vernon Jackson, (i.e., the same individual who had driven to Quebec with numerous stops at illicit cannabis stores en route, at Mr Kyle’s direction), before travelling therein to the residence of Mr Godoy-Velasquez. Entering a vehicle belonging to Mr Godoy-Velasquez, Mr Kyle then travelled onwards to the Bryanston property, before thereafter attending the residence of Mr Kofman, from which he retrieved another box and transported it back to Mr Kyle’s residence. Police believed that the observations reflected another drug transaction at Mr Kofman’s residence.
x. On September 29, 2021, police surveillance included observations of Mr Kyle leaving his residence in a vehicle belonging to Mr Godoy-Velasquez, and travelling to Mr Kofman’s residence. Mr Kyle then travelled onward to a residence in London for a 14-minute meeting before returning to his own residence. Mr Kyle thereafter travelled to Kitchener for another parking lot meeting and exchange of items. Police believed the observations were indicative of further drug trafficking activity.
xi. On September 30, 2021, police use of tracking data relating to Mr Kyle’s Dodge Ram vehicle, communications intercepted via an authorized audio probe in that vehicle and surveillance observations to obtain information about Mr Kofman’s use of that vehicle, and his transportation of a cannabis trimmer from the Bryanston property. In that regard:
Police review of tracking data from Mr Kyle’s Dodge Ram indicated that it was parked at the residence of Mr Godoy-Velasquez before it travelled from there to Mr Kofman’s residence, and on to the Bryanston property. It then travelled back into London, where it stopped at a residence on Emery Street and then at a Storage Mart facility.
During direct police surveillance of Mr Kyle’s vehicle commenced at the London Storage Mart location, police saw that Mr Kyle’s vehicle was being driven by Mr Kofman, (accompanied by an unidentified male passenger), and that a large white “Batch One” cannabis trimmer was in the rear bed of the vehicle.
Communications intercepted via an authorized audio probe in the vehicle included the following:
a. Mr Kofman and an unidentified male were discussing strapping an item down to transport it on a highway.
b. One of the males in the vehicle had a cellphone conversation with someone, shortly after the vehicle left the Bryanston property:
i. stating that he had just picked up “the trimmer”, which he described as a “Batch One”, purchased by his “bro” the previous year for $23,000, prior to the price currently having increased to $28,000 plus tax;
ii. stating that he was running the trimmer to “the farm”; and
iii. further describing the capabilities of the trimmer.
c. Mr Kofman had a phone conversation with an unknown male, wherein he stated: “I’m on my way. I’ve got my buddy Josh with that Batch One. You want me to bring it to Delhi, your place, or your house?”59
d. Mr Kofman and his male passenger then spoke about trimming cannabis and renting vehicles, before they both then engaged in a telephone conversation with another unknown male about receipt of “mail stuff”, picking up “the mail”, going to “the farm”, picking up “the package”, an expected delivery coming from Alberta, and it being “Crop-tober”. Following the call, one of the males in the vehicle asked the other what was really in the package, and was told in response that someone had told him “not to tell anyone”.
e. Mr Kofman and his male passenger thereafter continued to discuss cannabis, with Mr Kofman indicating they would not be trimming any cannabis for another month, (although they could trim 25 plants “here and there”), talking about paying “by the hour”, and providing instructions about renting a vehicle “especially when in other places”.
f. Mr Kofman also made various statements to his male passenger that D.C. Crawford believed to be a description of the layout of a cannabis grow operation as observed in the “fly over” of the Waterford property conducted on October 13, 2021; e.g., with Mr Kofman describing staggering of planting, (in various corners of the property), and differentiation of planted rows from one another, albeit with the rows still having “the same mix of strains”.
Mr Kofman drove the Dodge Ram, his male passenger and the Batch One cannabis bud trimmer to the Delhi property, where the trimmer was dropped off, and a female passenger entered the rear seat of the vehicle. Mr Kofman then drove the vehicle to the Waterford property, where he remained for approximately four hours before driving the vehicle back to his residence in London.
Having regard to the above information, D.C. Crawford formed a stated belief that, inter alia, the “Batch One” cannabis bud trimmer being transported by Mr Kofman on the day in question was the same “Batch One” cannabis marihuana bud trimmer the police had observed inside the commercial building at the Bryanston property during their covert entry operations at that location, and that Mr Kofman and his male passenger had retrieved that unit from that location; i.e., where it had been seen and photographed in close proximity to illicit cannabis and illicit cannabis extraction equipment.
In the result, D.C. Crawford characterized the transported item of equipment Mr Kofman was seen transporting in the Dodge Ram, from the Bryanston property to the Delhi property, as a “cannabis marihuana trimmer”.
D.C. Crawford also emphasized his belief that the transfer of the relevant “Batch One” cannabis bud trimmer from the confirmed illegal cannabis processing location in Bryanston to another cannabis production location indicated that an illicit cannabis operation also was being carried out at the transfer location.
It also was D.C. Crawford’s stated inference and belief that the intercepted communications of Mr Kofman, while he was in Mr Kyle’s vehicle, and speaking about matters including cannabis, drugs and money, indicated that Mr Kofman was familiar with illicit drug trafficking and cannabis distribution.
xii. On October 1, 2021, via the same authorized probe installed in Ryan Kyle’s Dodge Ram vehicle, Leon Kofman was heard operating Mr Kyle’s Dodge Ram vehicle again, and speaking to a child also travelling in the vehicle. In that regard:
The child was heard to ask Mr Kofman about the vehicle, to which Mr Kofman responded: “It’s my friend Ryan’s. There was an important piece of machinery we had to bring to the farm yesterday. It was really big, so we had to put it in the back.”
Mr Kofman was heard instructing the child not to step on some boxes that were inside the truck.
Mr Kofman was then heard to make further comments about the piece of machinery to the child, saying: “It’s a piece of machinery that helps us take down all the plants and trim the plants (unintelligible) from the buds and stuff. It’s a high tech awesome one.”
In his ITO affidavit, D.C. Crawford indicated his belief that Mr Kofman was discussing his transportation of the “Batch One” cannabis trimmer from the Bryanston property to the Waterford property; i.e., as the latter property, (unlike the Delhi property), was a rural property consisting of a residence, barn style outbuildings and open space.
xiii. Later the same day, (i.e., October 1, 2021), via the same authorized probe installed in Mr Kyle’s Dodge Ram vehicle, Mr Kyle was heard explaining to a female passenger that “Leon” had borrowed his truck to buy something, (which D.C. Crawford believed to be a reference to the “Batch One” cannabis trimmer), that Mr Kyle also had loaned Mr Kofman $46,000 in that regard, and that Mr Kyle was frustrated that Mr Kofman had not returned the vehicle filled with gas.
f. Further police surveillance and investigation relating to Mr Kofman, and the Delhi and Waterford properties that Mr Kofman was seen attending, resulted in D.C. Crawford including, inter alia, the following additional indications in his ITO affidavit:
i. The Waterford property was described as a rural property, located in Norfolk County, consisting of a two-storey residence, outbuildings and open space. It was said to be formally owned by 2705000 Ontario Inc., in respect of which Mr Kofman and Joel Capin were listed as company directors. It was also said, in relation to the Waterford property, that:
in addition to surveillance observations of Mr Kofman, Mr Capin and Mr Godoy-Velasquez being at the property, tracking data had placed Mr Kyle there as well;
there were “no licences to produce cannabis at the address”;60
it did “not have a licence to produce cannabis, or any other type of cannabis licencing”;61 and
it was “not licenced to produce cannabis”.62
ii. The Delhi property was described as a “commercial warehouse building”. It was said to be owned by “Seeds for Less”, in respect of which Joel Capin was listed as its director. It was noted that there were “two licences to produce cannabis for medical purposes” associated with the property. However, D.C. Crawford also emphasized his awareness, from previous investigations, that “persons involved in the illegal production, distribution and sale of cannabis often hide their nefarious activities behind the veil of a licence to produce medical cannabis”; e.g., with such locations often being used to produce cannabis in much higher quantities than permitted, sometimes involving the production of cannabis resin through extraction. It was D.C. Crawford’s belief, based on the information provided, that the confirmed licences for the Delhi property were being abused to process illicit cannabis in such a manner.
iii. On October 5, 2021, Mr Kofman was observed leaving his residence in a rented vehicle. He traveled to the Delhi property, (carrying a grey case and backpack into the building there), before leaving an hour later and travelling to the Waterford property. Mr Kofman then stayed at the Waterford property for approximately two hours before driving back to London with a female passenger; i.e., dropping the passenger off at a London residence, before proceeding to his own London residence.
iv. On October 13, 2021, the OPP Aviation Unit conducted a “fly over” of the Waterford property with D.C. Hillier of the OPP’s Organized Crime Enforcement Bureau, who thereafter prepared a surveillance report in that regard; a report that included indications of D.C. Hillier’s observations, (accompanied by a number of still images from a video of the Waterford property taken by D.C. Hillier), during the relevant fly over operation. Based on his review of that surveillance report and the images contained therein, D.C. Crawford indicated his belief:
that D.C. Hillier had located a “large outdoor cannabis grow operation” at the Waterford property;
that the said grow operation was estimated to have been able to produce “between 8,960 and 11,200 cannabis plants”, most of which appeared to have been recently harvested;
that an estimated 2000 cannabis plants remained on the property;
that the plants depicted in the images were “cannabis marihuana plants”; and
that some of the cannabis plants observed at the Waterford property would either still be growing, or hanging to dry within the outbuildings or residence at the Waterford property, as D.C. Crawford knew from experience that cannabis plants take time to grow, harvest, dry and trim prior to distribution, and no one appeared to be residing in the residence based on the surveillance and further police investigation.
v. On October 15, 2021, further police surveillance included observations of a rented Dodge Durango vehicle parked at the Waterford property, before travelling to what D.C. Crawford believed to be the area of the “outdoor cannabis marihuana grow operation” at the rear of the Waterford property, before then travelling to Toronto. The driver of the vehicle was observed to be the same male who had accompanied Mr Kofman when he drove Mr Kyle’s Dodge Ram vehicle and a “Batch One” trimmer unit from the Bryanston property to the Delhi property on September 30, 2021, before Mr Kofman then proceeded to the Waterford property.
vi. On October 16, 2021, the same Dodge Durango vehicle and same driver were seen once again visiting the rear of the Waterford property, and the “cannabis grow operation” and outbuildings located there.
vii. On October 17, 2021, a GMC Sierra vehicle registered to Joel Capin, (the other known director of the corporation which formally owned the Waterford property), was seen at the Waterford property. As Mr Capin was not believed to be residing at the Waterford property, it was D.C. Crawford’s stated belief that Mr Capin was attending there “to assist in harvesting illicit cannabis plants”.
viii. On October 23, 2021, police surveillance included observations of a large cube truck, (rented by Mr Kofman for the period from October 6th to October 29th, 2021), being used to transport a large quantity of cannabis plants from the Waterford property to the Delhi property; plants that were unloaded from the cube truck and carried into a building at the Delhi property by several people, including individuals who were seen traveling in a white van from the Delhi property to the Waterford property and back to the Delhi property, in tandem with the rented cube van.
ix. On October 24, 2021, simultaneous police surveillance of the Waterford and Delhi properties included observations of Mr Kofman driving Mr Capin’s GMC Sierra vehicle from the Waterford property to the Delhi property, (where the same white van and cube truck seen the previous day were seen once again, with a forklift removing large items from the cargo area of the cube truck), before Mr Kofman drove Mr Capin’s GMC Sierra vehicle back to the Waterford property, with the cube truck travelling back to the Waterford property as well.
x. Based on the aforesaid observations and information, it was D.C. Crawford’s belief that illicit cannabis was being grown at the Waterford property, and being transported from that location to the Delhi property for further processing.
g. On October 26, 2021, further police surveillance of Mr Kofman and his residence included observations of further interactions with Mr Kyle, and short attendances at Mr Kofman’s residence by unknown individuals, that D.C. Crawford thought significant and noteworthy. In particular:
i. Mr Kyle was seen travelling to Mr Kofman’s residence again, after which the two men travelled together to a restaurant for lunch before Mr Kofman was returned to his residence.
ii. After Mr Kofman was returned to his residence by Mr Kyle, an unidentified male arrived at and entered Mr Kofman’s residence for three minutes before departing.
iii. An unidentified female then arrived at and entered Mr Kofman’s residence carrying two boxes, before exiting the residence approximately three minutes later without the boxes and departing.
h. While tracking data on Mr Kyle’s cell phone had shown him communicating with Mr Kofman only once during the Project Gainsborough investigation, (on September 13, 2020), tracking data on the cell phone of Mr Godoy-Velasquez showed him communicating with Mr Kofman no less than 229 times between July 2020 and October 18, 2021.
i. Having regard to all the information set out in his ITO affidavit, D.C. Crawford formed a stated belief that numerous persons indicated in the affidavit, (including Mr Kofman), were using numerous locations and vehicles to commit various offences, (including various offences under the CA such as possession of cannabis for the purpose of distribution, possession of cannabis for the purpose of sale, and illicit cultivation, propagation or harvesting of any cannabis plant at a place other than a person’s dwelling house), and that evidence related to the offences under investigation, (including but not limited to cannabis, packaging material and currency), would be found at numerous specified locations and in numerous specified vehicles. In the course of stating and describing the grounds for his beliefs in that regard, D.C. Crawford summarized information that included the indications noted above, (in relation to Mr Kofman, Mr Kofman’s London residence and the Waterford property), and explained/emphasized that his corresponding beliefs in that regard included, (but were not limited to), beliefs:
i. that Mr Kyle’s repeated attendances at Mr Kofman’s residence and the Waterford property, Mr Kyle entrusting Mr Kofman with his vehicle over night, (i.e., for successive day use), telephone communication and other observed interaction between the two men, indicated a strong association between the two men;
ii. that the ability of Mr Kofman to attend the Bryanston property and retrieve the Batch-One trimmer from that property, without a contemporaneous attendance there by Mr Kyle and/or Mr Godoy-Velasquez, indicated an association of Mr Kofman to the building and the processing of illicit cannabis;
iii. that Mr Kofman was supplying Mr Kyle with illicit cannabis products (including cannabis resin) from Mr Kofman’s residence, via the various boxes and/or totes Mr Kyle had been seen taking out of Mr Kofman’s residence;
iv. that Mr Kofman had access to a cannabis extraction laboratory; and
v. that Mr Kofman was involved in the production and processing of illicit cannabis, and possibly cannabis resin as well, at the Waterford property and Delhi property.
j. D.C. Crawford accordingly requested warrants to search 14 specified locations, (including Mr Kofman’s residence and the Waterford property), as well as eight specified vehicles, allowing those searches to be carried out during specified hours, (6:00am to 8:59pm), on specified dates; i.e., November 2, 2021, through to November 5, 2021.
30Again, that is merely a summary of the information originally provided by D.C. Crawford, in his sworn ITO affidavit, to support his request for issuing of the impugned search warrants.
31As noted above, in approaching the accused’s application herein, I nevertheless also had regard to the further extrinsic evidence presented for my consideration, including the testimony of D.C. Crawford, and the various additional exhibits, (already summarized above), that were introduced via that testimony.
32As noted above, that testimony occupied a full morning of the proceedings before me, and is reflected in approximately 64 pages of transcript. I have regard to that testimony in its entirety, but will not attempt to summarize it here in exhaustive detail; i.e., focusing instead on what I considered to be the more salient aspects of that testimony. In that regard, D.C. Crawford’s substantive testimony included the following indications:
a. He confirmed that, at the time of his testimony, he was still with the O.P.P., (as he has been since 2006), and now has attained the rank of Detective Sergeant.63 He continues to be assigned to the Organized Crime Enforcement Bureau.
b. In the course of his duties, he has investigated persons for production, possession and trafficking of illicit cannabis marihuana, (investigations which have included his attendance at extraction laboratories), and has laid charges in that regard on numerous occasions. The majority of his experience in that regard was acquired throughout the period when cannabis was regulated by the Controlled Drugs and Substances Act, S.C. 1996, c.19, (or “the CDSA”), although he has continued to have some involvement in that regard, (although “not nearly as much”), following the regulation of cannabis by the CA instead.
c. He knew, as early as April of 2021, that he would be the officer preparing and signing/wearing the contemplated ITO affidavit that would be submitted by the police to request issuing of the search warrants, in relation to Project Gainsborough, that were the subject of the accused’s application. However, he remained involved in the ongoing investigation, and was not simply a “gatherer of information” being collected by others.
d. He understood that marihuana cannabis and hemp cannabis were both regulated by the CA, (although he admittedly did not have much experience with the production of hemp cannabis), understood that Health Canada provided licencing in relation to marihuana cannabis and hemp cannabis, and acknowledged that both were considered in the Project Gainsborough investigation. In that regard:
i. At the time of testifying, D.C. Crawford had a vague recollection that the subject of hemp was being discussed in the course of the investigation, perhaps as early as April of 2021, if not before then. However, his personal recollection was that the subject of hemp cannabis really did not come up for discussion that often.
ii. He knew that cannabis licensing checks were being done by several different officers, but initially could not remember offhand if hemp licensing checks were done or not.
iii. He confirmed that numerous meetings, (in excess of 100 meetings, and in excess of 100 meetings in 2021 alone), were held in relation to Project Gainsborough during the course of the investigation. In that regard:
In his initial testimony, D.C. Crawford recalled such meetings happening sometimes weekly, and sometimes more than a couple of times a week. However, in re-examination, he recalled that, by April of 2021, such meetings generally were occurring on a daily basis.
He initially indicated that he would attend such meetings if he was working, but went on to clarify, in his later testimony, that he personally attended approximately 75 percent of such meetings.
Another officer was assigned to act as a “scribe” or make notes of such meetings. While D.C. Crawford believed those notes generally would be an accurate reflection of what was discussed during such meetings, he could not say with certainty whether they were, and also emphasized that they were simply a summary and therefore would not reflect everything that was discussed. In any event, his personal notebooks did not go further than noting his attendance at such meetings.
D.C. Crawford also confirmed that the number of properties being discussed during the course of the Project Gainsborough included not only the 14 properties listed at page 8 of his ITO affidavit, but additional properties that were investigated in respect of which no search warrant ultimately was sought.
iv. He was taken to the “Meeting/Brief Summary” for such a meeting, held on April 6, 2021, (already described above), and the reference therein to D.C. Metcalfe’s apparent indication or update of “waiting on hemp returns” and “call made to Health Canada”. In that regard:
D.C. Crawford confirmed his understanding that Health Canada was the entity in respect of which checks for possible marihuana (commercial and medical) and hemp licences were made.
He had “no doubt” that D.C. Metcalfe made “some effort” to check on possible hemp licences, but did not recall the properties in respect of which that was done. Nor could he immediately recall the results of such checks.
He nevertheless was able to confirm that the Waterford property generally had come within the scope of the Project Gainsborough investigation by April of 2021.
D.C. Crawford also acknowledged that he and other investigating officers were to be mindful of possible legal activities being carried out at properties under investigation, (including the licenced growing of marihuana cannabis and hemp cannabis, pursuant to the new cannabis licensing regime), and that checking for relevant licences in that regard “made sense” to him.
v. He was taken to the “Meeting/Briefing Summary” for another meeting, held on April 13, 2021, (already described above), and the references therein to D.C. Metcalfe’s apparent indications of “no licencing at Blackwater”, and “Hemp and Cannabis” being “separated”, and “checked separately”. In that regard:
D.C. Crawford emphasized that he personally did not do any checks in that regard, and was not involved in making any such inquiries, but assumed any such checks done in relation to the Blackwater Road property were carried out to determine whether there was any licencing authorizing possession and/or distribution of cannabis at/from that location.
D.C. Crawford acknowledged that licensing of such activity, rendering it lawful, could impact the grounds for obtaining a search warrant in relation to suspected unlawful activity; e.g., activity that was not compliant with the CA.
In relation to the indicated need for separate checks in relation to marihuana cannabis and hemp cannabis, D.C. Crawford emphasized that he personally had not done either type of check in that regard to date, (i.e., in relation to the Project Gainsborough investigation or otherwise), and therefore was not sure of the process for performing such checks vis-à-vis Health Canada. He simply understood that such checks had been done “in some manner”.
vi. He was taken to the “Meeting/Briefing Summary” for another meeting, held on May 25, 2021, (already described above), and the reference therein to D.C. Metcalfe’s apparent indication of “nothing new – waiting on hemp”. It was D.C. Crawford’s belief that the indication related to D.C. Metcalfe waiting for the results of inquiries made in relation to possible hemp licencing.
vii. He was taken to the “Meeting/Briefing Summary” for another meeting, held on June 22, 2021, (already described above), and the references therein to D.C. Metcalfe’s apparent indications of there being “two different sides for Health Canada” in relation to hemp, to Health Canada not being “overly sure where hemp is growing” as it was “up to [a] grower to report back where the locations are”, to “8516 Carriage Road” being a “hemp location”, and to the need for “consideration” being made “prior to takedown [of] locations”. In that regard:
D.C. Crawford was able to confirm that the specified “Carriage Road” address referred to another rural property that came up in the course of the Project Gainsborough investigation, but nothing more than that.
He admittedly had no knowledge about what meaning the reference to Health Canada having “two different sides” was intended to convey.
He understood, simply from his reading of the meeting summary, that the grower-related comment was intended to convey that anyone licenced to produce hemp, under the Industrial Hemp Regulations, was obliged to advise Health Canada of the locations where such hemp was being produced, with such hemp being capable of being grown inside or outside.
viii. He was questioned about distinctions between marihuana cannabis and hemp cannabis, and indicated his belief that cannabis with a THC content of less than 0.3% would be considered hemp. He acknowledged that cannabis marihuana can be used to produce related oils and edibles, with a THC content higher than that, and that hemp cannabis can be used to produce a similar oil, albeit with a THC content less than 0.3%, with no limit, (to his knowledge)64, on its possible CBD65 content. He also acknowledged that hemp cannabis is produced in a manner very much like the production of marihuana cannabis; e.g., such that it can be harvested for its buds.
ix. He was taken to the “Meeting/Briefing Summary” for another meeting, held on June 29, 2021, (already described above), and the reference therein to D.C. Metcalfe’s apparent indication of there being “no hemp licence” in relation to a property described as “643 Railroad”, but could remember nothing about that address apart from it “ringing a bell”.
x. He was taken to the “Meeting/Briefing Summary” for another meeting, held on September 20, 2021, (already described above), and the references therein to D.S. Barkey apparently expressing a desire “to get a fresh sample of hemp if possible”, in relation to the 695 Richmond property, and D.C. Metcalfe’s apparent indication of having “submitted the list of 45 hemp licences to check”. In that regard:
D.C. Crawford was unable to expand further on the desire expressed by D.S. Barkey, apart from what the text of the summary indicated.
D.C. Crawford similarly was unable to expand on the meaning or significance of the recorded indication from D.C. Metcalfe, except to say that, based on the text of the summary, it seemed to indicate that there were 45 locations in respect of which D.C. Metcalfe was checking for hemp licensing. D.C. Crawford confirmed that he did not know what locations may have been on that list. However, he was able to confirm that the Waterford property was a subject of interest by then; e.g., insofar as it had been under surveillance.
D.C. Crawford also felt it was reasonable to think that property or its owners would have been included in that list of possible hemp licences being checked by D.C. Metcalfe; i.e., insofar as hemp licences appeared to be issued to property owners rather than in relation to properties per se, and the corporate owner of the Waterford property and its principals, (2705000 Ontario Inc. and Messieurs Kaplan and Kofman respectively), were known to police at that point, via earlier searches performed to determine ownership of the Waterford property. In any event, D.C. Crawford agreed that, insofar as the Waterford property was a property of interest in the ongoing investigation, checking to see whether there was a lawful reason to have cannabis plants at the property, (e.g., via a licence to cultivate medicinal marihuana cannabis or hemp cannabis), was a relevant consideration.
xi. D.C. Crawford also was taken to the IAR prepared by D.C. Metcalfe, described above, (and found at Tab 9 of the accused’s application record), wherein D.C. Metcalfe indicated, inter alia, that on September 20, 2021, he had been assigned the task of conducting “Hemp checks” in relation to “multiple targets”, (including Ryan Kyle and other various named individuals “and businesses associated to them”, but without mention of Mr Kofman and/or 2705000 Ontario Inc.), in order to determine whether Health Canada had issued any “Industrial Hemp Licences” to such persons and/or associated “businesses and corporation numbers”. In that regard:
D.C. Crawford confirmed that he generally relied on the accuracy of such reports, and their completeness, but also indicated that he candidly had no recollection of that specific document.
He also confirmed his expectation that checks would have been done in relation to 2705000 Ontario Inc., and its principals Mr Kaplan and Mr Kofman, to see if there was a licence that might explain the presence of cannabis plants at the Waterford property. However, there admittedly was no mention of such checks in that particular IAR.
e. Prior to his cross-examination, D.C. Crawford admittedly was not aware of the fact, (conceded by the Crown for the purpose of the accused’s application), that there was an industrial hemp licence in place relating to the Waterford property; i.e., the licence described above, (a true copy of which was attached to Ms Racette’s affidavit in the Crown’s responding application record), which was issued to 2705000 Ontario Inc., (with the Waterford property being that corporation’s indicated “mailing address”), authorizing the corporation to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches. The existence of that industrial hemp licence came as an acknowledged surprise to D.C. Crawford, who agreed that the existence of such a licence, (applicable to the Waterford and Delhi properties), would be an important fact to put before the authorizing justice from whom the search warrants were requested. In that regard, D.C. Crawford indicated:
i. that checks for hemp licences had been done;
ii. that such checks should have been done in a manner that addressed the possibility of such a licence in relation to the Waterford and Delhi properties;
iii. that he assumed at the time of swearing his ITO affidavit that had been done, and that he would have been told about the existence of any such licence if there was one;
iv. that he had no indication, knowledge or belief, at the time of swearing his ITO affidavit, that there may have been any industrial hemp operation at the Waterford property;
v. that the existence of such a licence “would’ve impacted some things”, including the indication at paragraph 626 of his ITO affidavit that the Waterford property did “not have a licence to produce cannabis or any other type of cannabis licencing”, and his indication at paragraph 638 of his ITO affidavit that the Waterford property was “not licenced to produce cannabis”, insofar as his focus at the time was on marihuana cannabis, (because the police had found illicit marihuana cannabis at various locations associated with various people in the course of the investigation), and his references to “cannabis” in the above comments were intended to refer to marihuana cannabis, without thinking about hemp cannabis; and
vi. that he simply “didn’t realize … at the time” that there was a hemp cannabis licence relating to the Waterford property, and what he wrote in his ITO affidavit was what he “believed at the time”.66
f. D.C. Crawford acknowledged that, at the time he swore his affidavit, he knew that marihuana and hemp were different forms of cannabis. He had an understanding that marihuana cannabis could be grown indoors or outdoors, and that there were various ways of producing marihuana cannabis. He also had a general belief that hemp cannabis was grown in a manner similar to marihuana cannabis. However, he admittedly had no knowledge of the particular possible or preferred ways in which hemp cannabis might be grown, (e.g., like hay or in rows), and had never been to a hemp cannabis production location or facility before.
g. In relation to the “Surveillance Report” prepared by D.C. Hillier and relied upon by D.C. Crawford, in relation to the “fly over” surveillance operation conducted in relation to the Waterford property on October 13, 2021, and described above:
i. D.C. Crawford confirmed that report formed one of the source documents that he reviewed and relied upon in preparing his ITO affidavit, and that the information and photographs from that report, reiterated and/or reproduced in his ITO affidavit, were drawn directly from that report by D.C. Hillier. However:
D.C. Crawford noted that he also had reviewed and relied upon a further IAR relating to the relevant “fly over” operation, completed by D.C. Hillier on October 20, 2021, noted in footnote 110 of the ITO affidavit, and marked as a further exhibit during the proceeding before me. In that IAR, D.C. Hillier characterized the observed grow operation as an “illicit cannabis operation”; e.g., opining, inter alia, that the configuration and spacing of the plants observed during the aerial surveillance were consistent with that which he had observed in numerous other illicit cannabis grow operations he had attended. D.C. Crawford confirmed that he also relied on that IAR prepared by D.C. Hillier as one of the sources giving him grounds to believe that the Waterford property was producing illicit cannabis.
When preparing his ITO affidavit, D.C. Crawford also personally reviewed video taken by D.C. Hillier during the relevant “fly over” surveillance of the Waterford property; i.e., in addition to his reliance on the aforesaid report and IAR prepared by D.C. Hillier.
ii. D.C. Crawford acknowledged that the text of D.C. Hillier’s report of October 13, 2021, referred only to a “large outdoor cannabis grow operation” having been observed at the Waterford property; i.e., without a further indication as to whether the cannabis in question was marihuana cannabis or hemp cannabis.67 However, D.C. Crawford also indicated his belief, at the time of swearing his ITO affidavit, that the relevant grow operation at the Waterford property involved the growing of marihuana cannabis; i.e., the belief he included and indicated at paragraph 242 of his ITO affidavit. In that regard:
D.C. Crawford acknowledged his understanding, at the time of swearing the ITO affidavit, that marihuana cannabis plants and hemp cannabis plants looked very similar, and thought that would be especially so during fly over surveillance operations. It was also his understanding that both types of cannabis plants could be grown in rows, and processed using the same equipment, although he admittedly had no firsthand knowledge in that regard and had never seen hemp cannabis production or processing.
D.C. Crawford also acknowledged that, had he known at the time of a licence to produce or cultivate hemp cannabis at the Waterford property, his opinion as to the nature of the cannabis plants seen growing there may very well have been different; i.e., that he would have allowed for the possibility that they may have been hemp cannabis plants.
Assessment of whether there was an adequate basis for issuing the disputed warrants
33With all of the above principles, considerations and evidence in mind, I turned next to an assessment of whether, having regard to the information set forth in the redacted and truncated ITO, (factoring in any appropriate notional excision of erroneous evidence and notional inclusion of any appropriate amplification evidence), there was reliable evidence that might reasonably be believed, on the basis of which the reviewing justice could have issued the relevant warrants.
34As noted above, the application brought on behalf of Mr Kofman asserted that the ITO affidavit sworn and submitted by D.C. Crawford to obtain the relevant search warrants in relation to Mr Kofman’s residence and the Waterford property did not contain, (either on its face or after appropriate excisions and amplifications), information sufficient to justify the warrants being issued; i.e., information sufficient to raise a credibly-based probability that the requirements for issuing the challenged warrants, pursuant to s.87(1) of the CA, had been satisfied.
35In that regard, the search warrants were presumptively reasonable, and the accused accordingly bore the onus of demonstrating that the warrants in this case could not properly have been issued in the circumstances.
36In my view, the accused did not discharge that burden.
37To the contrary, in my view, having regard to the totality of the circumstances set forth in the redacted and truncated ITO affidavit sworn by D.C. Crawford, (as initially presented, or with the excisions and amplifications suggested by counsel), there was reliable evidence that might reasonably be believed, on the basis of which the relevant warrant authorizations could have issued.
38In particular, in my view, it was open to a reviewing and issuing justice to conclude, based on the totality of such information, together with reasonably available inferences arising from that information, that there were reasonable grounds to believe:
a. that there had been contraventions of the CA; and
b. that cannabis in respect of which there had been such contraventions, other offence-related property, and evidence of such contraventions would be found at Mr Kofman’s residence and the Waterford property.
39My considerations and reasons in that regard included the following:
a. During the hearing before me, counsel primarily focused their submissions on whether the authorizing justice could have granted the challenged search warrants based on the presented record as modified by suggested excisions and amplifications. However, before turning to consideration of those aspects of the matter, I think it helpful to address whether the authorizing justice could have granted the requested authorizations, based on the record that was before the authorizing justice. In that regard:
i. The written and oral submissions before me exhibited a tendency to focus primarily on whether proffered evidence might or might not reasonably indicate that Mr Kofman was engaged in criminal activity. However, it bears repeating that, as noted above, the relevant issue to be addressed, in relation to warrant validity or invalidity, is not whether there were reasonable and probable grounds to believe that the accused was committing a crime at the specified location or locations; i.e., that Mr Kofman was committing offences under the CA at his residence and/or the Waterford property. In the present context, the material inquiry to be made was whether D.C. Crawford had reasonable and probable grounds to believe that an offence had occurred, and that evidence of that offence would be found at either or both of those locations.
ii. At no point was it suggested, in cross-examination or otherwise, that D.C. Crawford did not have a subjective or personal belief in the accuracy and credibility of the stated grounds of belief set forth in his ITO affidavit, and for reasons that include my assessment of his presented testimony, I find that he did.68 Lawful issuance of the relevant search warrants, (at least, based on the original record placed before the authorizing justice, prior to possibly appropriate excisions and amplifications), therefore turned on whether, from an objective perspective, there were reasonable and probable grounds for believing that the legislated requirements for issuing a search warrant pursuant to s.87(1) of the CA existed from an objective perspective.
iii. In my view, the evidence marshalled and presented in D.C. Crawford’s ITO affidavit, for consideration in its entirety by the authorizing justice, went well beyond presentation of reasonable and probable grounds to believe that offences under the CA had occurred; i.e., to present very substantial if not overwhelming evidence in that regard to justify such a belief. Without limiting the generality of the foregoing:
As noted above, one cannot assess the adequacy of presented grounds in that regard by a limited focus on the different pieces or types of presented evidence relating exclusively to Mr Kofman. The sufficiency of proffered grounds must be considered and assessed in their entirety.
Without reiterating the summary of evidence outlined in sub-paragraphs 29(b) to 29(d) of these reasons, in my view that presented information alone was sufficient to make it clear on any reasonable assessment that the police, through extensive use of various investigative sources and techniques, (e.g., confidential informants, surveillance operations, authorized vehicle tracking data, authorized interception of communications, execution of general warrants and authorized covert entries), had accumulated substantial evidence to indicate:
a. the existence of a well-developed, well-organized and extensive drug trafficking operation that included the trafficking of substantial quantities of unauthorized and illicit cannabis and related illicit cannabis products, and therefore corresponding offences under the CA;
b. that Ryan Kyle may have been a principal in that drug trafficking operation, but he was being assisted in that regard by numerous individuals acting in a directed and co-ordinated manner;
c. that the observed and otherwise detected movements and behaviors of individuals involved in that operation were exhibiting certain repeated practices and/or behaviours; and
d. that the relevant operation was making use of numerous locations, in various communities, to facilitate such drug trafficking.
- In my view, additional presented evidence accumulated by the police suggesting Mr Kofman’s participation in the relevant drug trafficking operation, summarized in sub-paragraph 29(e) of these reasons, was capable of bolstering those already adequately-established reasonable and probable grounds for believing that various offences under the CA had been committed.
iv. The remaining question for consideration, (i.e., in determining whether the original record placed before the authorizing justice provided adequate grounds for issuing the challenged warrants), was whether the presented evidence disclosed, from an objective perspective, reasonable and probable grounds for believing that any of the items described in s.87(1) of the CA would be found at Mr Kofman’s residence and/or the Waterford property. In that regard:
The evidence summarized in sub-paragraph 29(e), relating directly to Mr Kofman and the relevant properties with which he was associated, obviously has added but not exclusive significance, (i.e., when necessarily considered in the context of the presented evidence in its totality), in addressing that question.
As noted above, one of the confidential informants who approached the police with information, prompting and/or related to the investigation that became known as Project Gainsborough, provided the police with indications that Mr Kofman was selling cocaine and cannabis for Ryan Kyle. In that regard:
a. Those particular confidential informant indications have obvious weaknesses, in terms of assessing their reliability. Without limiting the generality of the foregoing:
i. By the time D.C. Crawford was swearing his ITO affidavit, those indications were dated, inherently undermining the degree to which the information was compelling. In that regard:
The material provided to the authorizing justice did not include any specific indication of the date or dates on which “Source #1” provided his or her information to the police, unless such information was provided in the relevant “tearaway appendix” relating to that particular Confidential Informant; an appendix which, (as noted above), was not provided to me even in a redacted form. For present purposes, I accordingly am obliged to proceed as if no specific date information was provided in that regard.
D.C. Crawford nevertheless indicates in his ITO affidavit that the Project Gainsborough investigation was initiated in June of 2020, and “borne out of information received from confidential informants”; i.e., the confidential informants referred to elsewhere in the ITO affidavit. That in turn provides an apparent indication that the information provided by Source #1 was received in or before June of 2020.
By the time D.C. Crawford swore his ITO affidavit on October 19, 2021, the information provided by Source #1 accordingly seems to have been at least 15 months old. It therefore certainly was not “current”, and the intervening passage of time and possibility of changed circumstances inherently gave rise to a distinct possibility that the information, even if reliably accurate at the time it was provided, was no longer so.
ii. The degree to which the provided information concerning Mr Kofman’s involvement in drug trafficking was “compelling” arguably also suffers from providing relatively few details in that regard; e.g., in terms of where, how and in what quantities Mr Kofman was said to be trafficking in drugs.
iii. Because the relevant ITO affidavit tearaway appendix relating to Source #1 was not disclosed, even in redacted form, this application also must be approached, for present purposes, on the basis that much of the information usually relied upon to bolster a positive “credibility” assessment of information provided by a confidential informant was lacking here. In particular:
As noted earlier, without the content of the relevant tearaway appendices originally provided to the reviewing justice, the information provided by the confidential informants relied upon in the police in this case effectively must be regarded as having the character of anonymous tips.
For present purposes, the provided information therefore must be regarded as lacking many if not most of the credibility assurances that accompany information provided to police by other confidential informants; e.g., those who are known and identified, (exposing such informants to the jeopardy of being charged with public mischief and/or obstruction of justice for providing false information for deliberately misleading police), those who have no known record for crimes of dishonesty, those who have no apparent motive for providing inaccurate information, and/or those who have an established “track record” of providing the police with demonstrably accurate and reliable information.
b. Having said all that, in my view it would not be fair to say that the information provided by Source #1 in relation to Mr Kofman should be regarded as entirely worthless, particularly when one bears in mind that such information is to be considered along with the other provided information in its totality, and that weaknesses in the compelling, credible or corroborated nature of information provided by a confidential informant may, to some extent, be compensated for by strengths in the other considerations. In that regard:
i. The information provided by Source #1 was not devoid of compelling content, insofar as it did provide details of the specific types of illicit drugs in respect of which Mr Kofman was said to be trafficking, and for whom.
ii. The indications provided by Source #1 in relation to Mr Kofman also carried at least some hallmarks of compelling and credible information, insofar as the indications were said to be based on “predominantly first-hand” observations as opposed to mere rumour or gossip -- although the qualification “predominantly” also makes it difficult if not impossible to determine which particular indications were based on such first-hand observations and which were not.
iii. In my view, the information set forth in the ITO affidavit sworn by D.C. Crawford also included indications that Source #1 was providing accurate and reliable information, insofar as further police investigation arguably corroborated much of what Source #1 was saying to the police. In that regard:
I am mindful that, as noted above, the level of verification required to meaningful corroborate information provided by a confidential informant may be higher where the police are relying on a confidential informant whose credibility largely cannot be assessed; a characterization that must be applied to this situation, for present purposes, for the reasons outlined above.
It nevertheless also should be remembered, in considering all of the provided information in context, that the indications provided to police by Source #1 were not limited to the indication that Mr Kofman was selling cocaine and cannabis for Mr Kyle. As noted above, Source #1 also told police that Mr Kyle was selling cocaine at the kilogram level and cannabis at the pound level, that Mr Kyle was involved in producing and selling cannabis, and that Mr Kyle’s drug trafficking associates included not only Mr Kofman but Mr Godoy-Velasquez, Jonathan Gignac and Thomas McHugh.
In my view, the ITO affidavit provided ample evidence, (outlined in detail above), that further police investigation corroborated the accuracy of all of Source #1’s indications regarding Mr Kyle, Mr Godoy-Velasquez, Mr Gignac and Mr McHugh, including the described associations between Mr Kyle and those other three individuals, and the participation of all four men in the type of drug trafficking activity described by Source #1. To the extent it had been clearly demonstrated that Source #1 was providing the police with accurate and corroborated information in relation to those four individuals, in my view that in turn also provided, to some extent, a reasonable basis for believing that Source #1 probably was providing the police with accurate information concerning Mr Kofman as well.
In my view, the further investigation carried out by police also provided a degree of independent corroboration of the indications provided by Source #1 as far as Mr Kofman himself was concerned. Without limiting the generality of the foregoing:
a. That investigation corroborated that Mr Kofman did indeed have a direct association with Mr Kyle, and an association in that regard that certainly appeared to extend beyond casual acquaintance; e.g., insofar as Mr Kyle and Mr Kofman were seen dining together, Mr Kyle was seen attending at Mr Kofman’s residence on multiple occasions, tracking device information indicated Mr Kyle’s attendance at the remote Waterford property owned by a corporation in which Mr Kofman was a principal, and Mr Kyle was willing to entrust his Dodge Ram vehicle to Mr Kofman for an extended period of time.
b. In my view, (expanded upon in greater detail below), there was also evidence presented to the reviewing justice that allowed for reasonable inferences, (especially by a police officer such as the ITO affiant D.C. Gainsborough, who was possessed of considerable training and experience in relation to criminal investigations and the investigation of drug-related offences in particular, whose inferences in relation to such matters therefore deserve a degree of deference), that Mr Kofman was participating in illicit drug trafficking, at least in relation to cannabis, as indicated by Source #1. In that regard, I am mindful that the majority of such evidence arguably gives rise to an inference that Mr Kofman was supplying Mr Kyle with illicit cannabis and/or cannabis products, as opposed to the directional flow of illicit cannabis between Mr Kyle and Mr Kofman indicated by Source #1. However, at least some of the evidence accumulated during the course of the police investigation, (i.e., the monitored conversation between Mr Kyle and another male on April 16, 2021, wherein Mr Kyle indicated that he would be bringing described illicit cannabis products to the other male and be there shortly, before Mr Kyle was seen proceeding directly to Mr Kofman’s residence immediately thereafter), would support an inference consistent with the effective indication by Source #1 that Mr Kyle was supplying Mr Kofman with cannabis for the purpose of resale. I am also mindful that, as indicated above, a tip from a confidential informant can still be compelling even if it contains some inaccuracies.
- While the Project Gainsborough investigation may have been prompted by confidential informant information, in my view that subsequent investigation disclosed additional information, supplied to the reviewing justice via the ITO affidavit, providing further evidence that might reasonably be believed, and which was capable of supporting a reasonable or credibly-based probability that Mr Kofman, his residence and the Waterford property were involved in offences contrary to the CA, such that cannabis and/or other items described in s.87(1) of the CA would be located in Mr Kofman’s residence and at the Waterford property. For example and without limiting the generality of the foregoing, and as noted and described in detail above:
a. There was evidence of significant ongoing interaction between Mr Kofman and Mr Kyle, but also between Mr Kofman and Mr Godoy-Velasquez; the two individuals effectively identified, (e.g., via intercepted communications, surveillance and video probes), as the two leading or principal actors or coordinators of the extensive and well-coordinate operation trafficking in significant quantities of illicit cannabis and cannabis-related products.
b. Mr Kyle was seen repeatedly attending at Mr Kofman’s residence, at different times, and usually only briefly for a matter of minutes, either before or after attending confirmed storage locations for illicit cannabis and/or cannabis products, (e.g., the Bryanston property, 2250 Blackwater and 695 Richmond), or on his way to interactions with others regarded by D.C. Crawford as indicative of drug trafficking.
c. Mr Kyle also was seen repeatedly removing boxes from Mr Kofman’s residence and transporting them to other locations, including the 695 Richmond location used principally if not exclusively for the confirmed storing and packaging of illicit cannabis products, with the police thereafter confirming that the contents of at least one box, similar to that transported by Mr Kyle to 695 Richmond, contained illicit cannabis-related product. Mr Kyle’s movement of boxes in that regard was consistent with other observed movement of items by Mr Kyle and Mr Godoy-Velasquez to and from other locations where illicit cannabis was being stored, processed and/or packaged.
d. Police monitored a communication between Mr Kyle and another male wherein Mr Kyle, while at 2250 Blackwater, described illicit cannabis products he promised to deliver to the other male, with an indication that he would “be there shortly”, before Mr Kyle thereafter proceeded directly to Mr Kofman’s residence.
e. Police observed other unknown individuals making short attendances at Mr Kofman’s residence for only a few minutes, with at least one of those individuals leaving boxes at Mr Kofman’s residence before departing.
f. In the absence of Mr Kyle and Mr Godoy-Velasquez, Mr Kofman was able to personally attend at the Bryanston property, (a confirmed location housing significant quantities of clearly visible illicit cannabis, and cannabis processing and packaging equipment), and pick up and transport what seemed to be the same “Batch One” trimmer that police had seen within the Bryanston property facility, (immediately adjacent to other illicit cannabis processing equipment), before transporting that piece of equipment, in Mr Kyle’s vehicle, to the Delhi and Waterford properties owned by corporations controlled by Mr Kofman.
g. The monitored conversations in which Mr Kofman engaged, while using Mr Kyle’s truck, indicated that Mr Kofman was quite knowledgeable about cannabis cultivation/production, and actively and substantially engaged in such activity. It also included indications of instructions to maintain secrecy in relation to certain activity being engaged in by Mr Kofman or his travelling companion; i.e., to not tell anyone about the nature of an expected package.
h. Further surveillance confirmed that the Waterford property, owned by a corporation controlled by Mr Kofman, had been and/or was being used to cultivate significant amounts of cannabis, in respect of which, at the time of swearing his ITO affidavit, D.C. Crawford understood there to be no current or applicable licensing.
i. Other surveillance and tracking information had also confirmed the attendance of Mr Kyle and Mr Godoy-Velasquez at the Waterford property, despite its remote/rural setting and distance from London.
j. At the time of swearing his ITO affidavit, D.C. Crawford understood Mr Kofman to have no known occupation; i.e., no legitimate source of income with which to support himself.
- To be sure, one could posit perfectly innocent and exculpatory explanations for such observations and information, and defence counsel did so during the course of submissions in an effort to “neutralize”, in succession, individual components or items of suggested incriminating information relied upon by D.C. Crawford. However:
a. As noted above, reasonable grounds can co-exist with exculpatory possibilities, and to hold otherwise effectively would insist on a standard of proof beyond a reasonable doubt to obtain a search warrant. In this case, for example:
i. It was certainly possible that Mr Kofman happened to be an innocent mutual friend of Mr Kyle and Mr Godoy-Velasquez, with no involvement in their drug-trafficking operation, and that the attendances of Mr Kyle and Mr Godoy-Velasquez at Mr Kofman’s residence and/or Waterford property before or after attendance at confirmed locations where illicit cannabis was being stored, processed and packaged, and/or travelling to or from apparent drug-trafficking interactions, reflected nothing but entirely innocent social interaction that happened to coincide with such other apparent drug-trafficking attendances and interactions purpose as a matter of coincidence. Similar short attendances at Mr Kofman’s residence may also have reflected innocent social visits and/or deliveries. In my view, however, an alternative reasonable inference, especially by an experienced police officer trained in the detection of such matters, (having regard to the totality of the evidence, including other confirmed and extensive drug-trafficking activity of Mr Kyle and Mr Godoy-Velasquez, and their related movement of items in boxes and bags between locations), was that such visits to Mr Kofman’s residence and Waterford property were also related to drug-trafficking activity; i.e., to deliver or retrieve illicit cannabis or related cannabis products.
ii. It was certainly possible that the particular box Mr Kyle was seen removing from Mr Kofman’s residence and taking into 695 Richmond was merely similar to the one later found by the police within that unit during a subsequent covert entry therein, at which time the latter box was found to contain illicit cannabis or cannabis-related product. However, in my view, it was also a reasonable inference that it was the same box, with its contents providing apparent confirmation that Mr Kyle was retrieving cannabis or cannabis-related product from Mr Kofman’s residence, and taking it to 695 Richmond for further processing and packaging.
iii. It was certainly possible that Mr Kofman picked up a “Batch One” cannabis bud trimmer from the Bryanston property that was entirely different from the one apparently being used in connection with the clearly visible illicit marihuana cannabis storage and processing operation being carried out at that facility, or that the piece of equipment was the same as that observed at the location by police but somehow retrieved from the Bryanston location without Mr Kofman entering the facility or acquiring/having any knowledge of what was going on there, (e.g., with other unknown individuals acting to move the unit from inside the facility to somewhere outside where it could be picked up by Mr Kofman in the vehicle Mr Kyle had lent to him as a friend not involved in Mr Kyle’s drug-trafficking operation), and/or that Mr Kofman intended to use the piece of equipment for benign/legal purposes unrelated to its apparent former use in the processing of illicit marihuana cannabis. In my view, however, an equally plausible and reasonable alternative inference, (having regard to the totality of the evidence, including evidence of an ongoing relationship between Mr Kofman, Mr Kyle and Mr Godoy-Velasquez, demonstrated trust between Mr Kyle and Mr Kofman insofar as Mr Kyle was willing to provide Mr Kofman with his vehicle on an extended basis, and the confirmed substantial drug-trafficking activity of Mr Kyle and Mr Godoy-Velasquez in relation to illicit cannabis), was that Mr Kofman had an independent ability to enter the facility at the Bryanston property, knew about and/or was clearly able to see the illicit cannabis and cannabis processing activity going on there, and failed to report it because he was complicit in that activity, retrieved the same Batch One cannabis trimmer the police had observed in the facility that apparently was being used for the processing of illicit cannabis, and actively engaged in transporting that piece of equipment to other locations, (including the Waterford property), so that it would continue to be used for the same illicit purpose in those locations as well.
iv. It was certainly possible that the monitored conversation of Mr Kofman while he was engaged in the borrowing of Mr Kyle’s vehicle reflected knowledge of and/or participation in legal production/harvesting of hemp cannabis, without any connection whatsoever to the extensive trafficking, by Mr Kyle and Mr Godoy-Velasquez, in substantial quantities of illicit marihuana cannabis and related illicit products. In my view, however, when one considers the reality that Mr Kyle and Mr Godoy-Velasquez had to be sourcing substantial quantities of illicit cannabis from somewhere, (to provide ongoing supply to their extensive drug-trafficking operation in that regard), the reality that both men were having ongoing interactions with Mr Kofman during the course of that extensive drug-trafficking activity, the reality that Mr Kofman’s company owned properties where substantial quantities of cannabis were being grown, stored and processed, and that Mr Kofman was engaged in discussion of his familiarity with and active participation in cannabis cultivation and harvesting, at the same time as discussion about the need to keep certain activity a secret, an alternative and objectively reasonable inference, available to D.C. Crawford and/or the reviewing justice, was that Mr Kofman and his corporation’s Waterford property were a source, if not the source, of the illicit marihuana cannabis and related illicit cannabis products being trafficked via the illegal operation being led and coordinated by Mr Kyle and Mr Godoy-Velasquez.
v. It was certainly possible that 100 per cent of the cannabis plants observed, videotaped and photographed at the Waterford property via the fly over surveillance operation, and/or seen transported to the Delhi property during the course of additional police surveillance, were hemp cannabis plants; a possible inference that would have been bolstered at the time had the police, D.C. Crawford and the reviewing justice been aware of the industrial hemp licence issued to 2705000 Ontario Inc., the owner of the Waterford property. In my view, however, without viewing those surveillance observations in isolation, but in the context of the totality of information available, (including but not limited to the extent of the detected illicit cannabis trafficking/distribution operation, its need to source substantial quantities of illicit cannabis marihuana and related illicit product from somewhere, indications of the involvement of Mr Kofman and/or his residence in that operation, Mr Kofman transporting equipment apparently used in the illicit cultivation and/or processing of cannabis from the Bryanston facility to the Waterford property, and the attendance of Mr Kyle and Mr Godoy-Velasquez at that distant and rural property), it was also a reasonable inference, that would have been available to D.C. Hillier, D.C. Crawford and the reviewing justice in any event, that some portion of the cannabis plants observed at the Waterford property and/or being transported from that property were unlicensed and illicit marihuana cannabis plants.
b. As also noted above, proffered grounds relied upon to obtain a search warrant are not to be considered and dissected in isolation, but with due regard to the totality of the available evidence. In my view, when that is done, the overall circumstances were easily capable of tilting the sort of possible reasonable alternative inferences and beliefs I have identified from the possible to the probable; i.e., of giving rise to a credibly-based probability that Mr Kofman, his residence and the Waterford property were actively involved in the illicit marihuana cannabis drug-trafficking operation being led by Mr Kyle and Mr Godoy-Velasquez, and that offence-related evidence would be found at Mr Kofman’s residence and the Waterford property.
v. For such reasons, I think it clear that the record originally placed before the reviewing justice, (albeit notionally shorn of the information contained in the tearaway appendices not disclosed or provided for consideration in relation to the accused’s application), clearly provided at least some evidence that might reasonably be believed, on the basis of which the challenged search warrants could have been issued.
b. However, that obviously was not the only analysis required in relation to the accused’s application; e.g., insofar as the application proceedings before me also focused, in large measure, on suggested appropriate excisions and amplifications of the ITO affidavit sworn by D.C. Crawford, and the impact that would have on the existence of an adequate basis on which the challenged search warrants could have been issued. In that regard:
i. It was emphasized by defence counsel, and acknowledged by Crown counsel, that a number of factual assertions made by D.C. Crawford in his ITO affidavit were demonstrably incorrect, and/or otherwise presented or suggested an inaccurate state of affairs at the time the ITO affidavit was presented to the reviewing justice for consideration. In particular:
At paragraph 24 of his ITO affidavit, D.C. Campbell asserted, in relation to the Waterford property, that “There are no licences to produce cannabis at the address”.
As noted above, D.C. Campbell similarly asserted, but in a more expansive way, at paragraph 626 of his ITO affidavit, in relation to the Waterford property, that “The property does not have a licence to produce to produce cannabis, or any other type of cannabis licencing”.69
As noted above, D.C. Campbell also made a similar assertion at paragraph 638 of his ITO, after referring to the fly over surveillance carried out in relation to the Waterford property, (and the observations thereby made of “a large plot of cannabis plants”), that “The property is not licenced to produce cannabis.”
At paragraph 635 of his ITO affidavit, D.C. Campbell indicated, in relation to the Delhi property, that there were two licences to produce cannabis for medical purposes at that property; a statement that was accurate as far as it went but, on a fair reading, in my view, implied that there was no other cannabis licensing relating to the Delhi property.
At paragraph 650 of the ITO affidavit, D.C. Campbell made a number of assertions regarding Mr Kofman, including a statement that “Leon Kofman does not have a known occupation”. That is followed by an express indication that Mr Kofman is listed as one of the directors of 2075000 Ontario Inc., (the corporation which formally owned the Waterford property”, with that indication nevertheless coupled with an indication immediately thereafter of D.C. Crawford’s belief that the Waterford property was being used to produce and process illicit cannabis. In my view, a fair reading of the paragraph is that D.C. Crawford was indicating to the reviewing justice that Mr Kofman may have had an “occupation”, in the sense he was thought to be occupied in operation of an illicit cannabis production and processing location/facility, but had no known legal occupation.
ii. Again, the indications and/or suggestions set forth in the previous sub-paragraph were demonstrably inaccurate or incomplete, and/or conceded to be inaccurate by Crown counsel. In that regard:
- In relation to the Waterford property, the material included in the Crown’s responding record made it clear that, while it was accurate to say that there were no current medical cannabis registration certificates in place relating to the property, (insofar as the two earlier certificates issued to Ms Bartolini and Mr Berry in that regard had expired), and that there were no commercial licences issued by Health Canada to the property itself under the CA, there was in fact a licence that had been issued to 2705000 Ontario Inc., (the corporation in respect of which Mr Kofman was a director), authorizing that corporation, (whose mailing address was that of the Waterford property), to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches. In that regard:
a. Such indications of an industrial hemp licence being issued to a licensee, rather than to a property per se, were consistent with the noted indications being made by D.C. Metcalfe recorded in the “Meeting/Briefing Summary” documents described above, wherein D.C. Metcalfe was reporting that there were “two different sides for Health”, (i.e., in relation to licensing relating to industrial hemp cannabis, as opposed to commercial licensing relating to marihuana cannabis), insofar as licences relating to industrial hemp cannabis were issued to growers, (rather than particular locations), with such growers then being obliged to “report back” to Health Canada in terms of providing information regarding the locations where such licenced industrial hemp activities were being conducted.
b. In the result, the Crown acknowledged, there was an industrial hemp cannabis licence that effectively authorized 2705000 Ontario Inc. to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches at or from the Waterford property, although there may not have been a current cannabis licence issued pursuant to the CA in relation to that property per se.
In relation to the Delhi property, there was no affidavit information or documentation filed to expressly confirm that the same or similar industrial hemp licensing extended to authorize similar activity being carried out at the Delhi property. However, it was confirmed during oral submissions that the parties had agreed that also was the case in relation to the Delhi property, for purposes of the application.
Insofar as Mr Kofman was a director of a corporation possessed of a licence to engage in legally authorized cultivation and sale of industrial hemp in the form of flowering heads, leaves and branches, it was not accurate to say or suggest that Mr Kofman had no known legal occupation. He was in fact a principal in a corporation that was legally authorized to engage in such activity, with a view to profit.
iii. In the course of oral submissions, it was suggested by defence counsel, implicitly if not explicitly, that the ITO affidavit contained further demonstrable errors in relation to any and all indications therein that the cannabis plants observed at the Waterford property and/or Delhi property were marihuana cannabis rather than hemp cannabis. In my view, however, the evidence presented for my consideration did not necessarily warrant such a conclusion. In particular, (and as discussed in further detail below), licensing authorizing the cultivation and sale of industrial hemp at the Waterford and/or Delhi properties inherently does not negate the possibility of illicit marihuana cannabis being cultivated and sold at or from such properties instead of, or in addition to, the cultivation and sale of industrial hemp cannabis. In my view, any stated belief expressed by D.C. Hillier relied upon by D.C. Crawford or independent belief of D.C. Crawford himself that cannabis observed at the Waterford and/or Delhi properties was marihuana cannabis rather than hemp cannabis accordingly is not demonstrably inaccurate. Such beliefs may or may not have been accurate, depending on the actual nature of the cannabis that was observed at the time of the relevant police surveillance.
c. As noted earlier, however, demonstrable inaccuracies or inadequacies in an ITO affidavit do not necessarily mean that corresponding corrective notional excisions and amplifications should be made when determining a search warrant’s validity. In that regard:
i. The following legal principles, noted above, bear repeating:
As the proper focus in relation to applications challenging the adequacy of grounds proffered in an ITO affidavit to obtain a warrant is on the honesty and reasonableness of the affiant’s belief about the existence of the requisite grounds, the affidavit is tested on what the affiant knew or ought to have known at the time it was sworn, and not on the ultimate accuracy of the information upon which the affiant relies.
An error or omission in an ITO affidavit accordingly is not relevant if the affiant, swearing to an honest belief in the information being presented to the issuing justice, could not reasonably have known of the error or omission when the affidavit was sworn and submitted.70 In that regard, while such an affiant may not ignore signs that other officers may be misleading them or omitting material information, ITO affiants do not need to second-guess information provided to them by other officers and conduct their own investigation in that regard if there is no indication that anything is amiss.
ii. The ultimate accuracy of the information and beliefs stated and/or relied upon by D.C. Crawford in his ITO affidavit, as far as licensing relating to the Waterford and Delhi properties is concerned, or in relation to whether Mr Kofman had a legal occupation, therefore is not the touchstone for making notional excisions or amplifications in relation to the proffered grounds for determining search warrant validity.
iii. In this case, it also was not suggested, in cross-examination of D.C. Crawford or otherwise, that he actually knew about the industrial hemp licensing that had been issued to 2705000 Ontario Inc., any corresponding ability to legally cultivate and sell industrial hemp in the form of flowering heads, leaves and branches at or from the Waterford and/or Delhi properties, and/or Mr Kofman thereby having a legal occupation at the time the ITO affidavit was sworn and submitted to the reviewing justice.
iv. Defence counsel instead argued, (as a necessary basis for making appropriate notional excisions and amplifications in relation to the relevant ITO affidavit, to determine validity of the challenged search warrants on that basis), that D.C. Crawford “ought to have known” such things at the time the ITO affidavit was sworn. In that regard:
It was emphasized that information about such hemp cannabis licensing was clearly available from Health Canada, as demonstrated by the fact that it was included in the Crown’s responding material.
It was emphasized that the police were alert to the need to check for possible hemp cannabis licensing in the course of the Project Gainsborough investigation; e.g., insofar as the subject came up repeatedly in meetings held during the course of the investigation, D.C. Metcalfe had been assigned to carry out such searches and/or request such information from Health Canada, such searches were carried out or requested in relation to other individuals and/or properties of interest in the course of the investigation, and the results of such searches or requests were being discussed at the meetings held during the course of the investigation.
It was emphasized that D.C. Crawford himself expressed surprise and regret that the relevant industrial hemp licensing issued to 2705000 Ontario Inc. and/or capable of being applied to the Waterford and/or Delhi properties apparently had not been sought or obtained. In particular, D.C. Crawford expressed regret that he had not personally checked for the existence of such licensing information.
v. In my view, however, the fact that the police viewed broadly arguably should have known about such industrial hemp licensing and its possible implications, or that D.C. Crawford expressed surprise or regret about apparent police failings in that regard and/or about his not having personally checked for such information, is not sufficient in and of itself to conclude that the information proffered by D.C. Crawford in his ITO affidavit should be notionally excised and/or amended as a prelude to determining validity of the challenged search warrants. In that regard:
As noted above, it is well-established that, while ITO affiants may not ignore signs that other officers may be misleading them or omitting material information, they do not need to second-guess information provided to them by other officers and conduct their own investigation in that regard if there is no indication that anything is amiss.
In my view, that well-established principle is reinforced by practical realities inherent in a police investigation such as Project Gainsborough. Without limiting the generality of the foregoing:
a. As reflected in the lengthy ITO affidavit sworn by D.C. Crawford, and the further documentation and testimony presented for my consideration, it was a multi-faceted, geographically widespread and prolonged police investigation that extended over the course of approximately 15-16 months, with many targeted persons and places of interest, involving many officers who were assigned various individual responsibilities, and more than a hundred meetings in 2021 to receive and discuss reported investigative actions, plans and developments.
b. The investigation also clearly generated considerable documentation; e.g., in the form of prepared and/or compiled investigative action reports, meeting/briefing summaries, location of interest reports, business of interest reports, and person of interest profiles, which incorporated and made reference to additional documents and communications, as well as records and video of intercepted communications and other forms of surveillance.
c. The situation nevertheless also involved a single officer, in the form of D.C. Crawford, being charged with responsibility for preparing, swearing and submitting a single ITO affidavit, in a timely way, to request desired search warrants in relation to many locations and vehicles.
d. D.C. Crawford may have expressed in cross-examination, with the benefit of hindsight, regret that there was an apparent failure during the investigation to carry out the particular licensing checks that would have detected the relevant industrial hemp licensing that was missed, (e.g., the industrial hemp licence issued to 2705000 Ontario Inc.), and that he personally did not do that check personally to ensure that nothing had been missed. However, in the absence of any indication that might have suggested to D.C. Crawford to suggest that the work being done in that regard by other officers was inaccurate or incomplete, (and in my view there were no such indications), the suggestion that he had any independent obligation to second-guess the information effectively being provided to him by so many other individual officers, (including D.C. Metcalfe), and embark on independent efforts to verify such information, seems entirely impractical and unreasonable in the circumstances. The well-established law in this area, perhaps not surprisingly, accords with common sense.
- In my view, the presented evidence also falls short of establishing any indication that D.C. Crawford received any “indication that [something] was amiss”, in relation to the making of appropriate cannabis-licensing inquiries, (including licensing relating to industrial hemp), and the reporting of relevant results in that regard. Without limiting the generality of the foregoing:
a. As noted above, the Investigative Action Reports being made available to D.C. Crawford for review provided clear indications that D.C. Metcalfe had been assigned the task of completing appropriate cannabis-licensing checks in relation to the ongoing investigation.
b. As noted above, D.C. Crawford also attended numerous meetings of officers involved in Project Gainsborough, during which D.C. Metcalfe provided reports and updates concerning his making of cannabis-licensing inquiries to Health Canada in relation to targets of the ongoing investigation; another indication that D.C. Metcalfe had been assigned responsibility for making such inquiries and reporting the results.
c. As noted above, during such meetings, and while providing such reports, D.C. Metcalfe repeatedly provided indications to participating officers, (including D.C. Crawford), that he was actively engaged in carrying out his assigned responsibilities in that regard; e.g., contacting Health Canada in relation to such cannabis-licensing inquiries, receiving information from Health Canada providing clarification about the manner in which cannabis-licensing was issued and corresponding information was maintained, (including clarification that industrial hemp licences were issued to growers rather than properties), obtaining licensing-related information for people and places that had become targets of interest in the investigation, (including information related to industrial hemp licensing), and reporting noteworthy results of such licensing-related inquiries to other officers involved in the investigation.
d. As noted above, the comments made by D.C. Metcalfe during such meetings to participating officers, (including D.C. Crawford), also included reports on the existence of identified hemp cannabis locations, and D.C. Metcalfe’s express and emphasized recognition of the importance of determining whether any particular locations of interest in the investigation were ones involving authorized hemp-cannabis prior to any “takedown” of such locations; i.e., prior to obtaining and executing any search warrants in relation to such locations.
e. Mr Kofman and the Waterford property were clearly identified targets of interest in the Project Gainsborough investigation, and discussed as such during investigation meetings attended by D.C. Metcalfe and D.C. Crawford. Moreover, formal ownership of the Waterford property by 2705000 Ontario Inc., (as well as Mr Kofman’s status as a director in that corporation), had been confirmed as early as April 23, 2021, if not before, as indicated in the Location of Interest report of that date. The Investigative Action Reports being made available to D.C. Crawford also indicated and confirmed that D.C. Metcalfe was making cannabis-licensing inquiries to Health Canada in relation to the Waterford property.
f. Having regard to such circumstances, in my view it was entirely reasonable for D.C. Crawford, as he was preparing his ITO affidavit for submission to the reviewing justice, to assume that D.C. Metcalfe had carried out his assigned responsibilities properly and thoroughly; i.e., in terms of making all appropriate cannabis-licensing inquiries vis-à-vis Health Canada, (including industrial hemp licensing inquiries), and reporting any results of significance in that regard prior to the contemplated “takedown” of properties via the search warrants that were being requested, including the search warrant being requested in relation to the Waterford property. In retrospect, that clearly was not done; i.e., insofar as D.C. Metcalfe apparently failed to ask Health Canada whether any industrial hemp licensing had been issued to 2705000 Ontario Inc., the formal owner of the Waterford property. Such an inquiry clearly should have been made, and for some unknown reason that simply was not done. For present purposes, however, the fact remains that there was nothing in the presented evidence to suggest that D.C. Crawford, at the time of swearing his ITO affidavit, had any indication whatsoever that any such a failure had occurred; i.e., that there was “anything amiss” in that regard. Without limiting the generality of the foregoing, I find that D.C. Crawford’s expression of complete surprise at learning of that failure for the first time during the application proceedings before me was entirely candid and genuine.
vi. In the result, while there may have been demonstrable inaccuracies or inadequacies in D.C. Crawford’s ITO affidavit, (as outlined above), the analysis mandated in relation to such matters, applied to the relevant facts, indicates that no corresponding notional “corrective” excisions or amplifications should be made to that affidavit when determining validity of the challenged search warrants. If so, the conclusion of validity in relation to those warrants, outlined above, remains unchanged.
d. In my view, however, that ultimate conclusion regarding validity of the challenged search warrants would remain unchanged, even if one were to make the suggested notional excisions and amplifications to D.C. Crawford’s ITO affidavit, as sufficient reliable information still would remain in the “corrected” ITO affidavit upon which the search authority could have been grounded. In that regard:
i. As noted above, (but which I will repeat here for emphasis), even where it has been established that information in an ITO affidavit is inaccurate or omits material facts, it does not necessarily follow that the statutory requirements for issuing a search warrant have not been met; i.e., that the core substance of the ITO affidavit, as notionally revised to “correct” it via appropriate excisions and amplifications, could not have supported issuance of the warrant.
ii. In this case, notwithstanding my primary conclusion regarding the issued warrant’s validity noted above, I did consider, (for the sake of argument and/or in the alternative), what the outcome in that regard would be if one accepted the propriety of suggested excisions and amplifications addressed in sub-paragraphs 39(b)(i) and 39(b)(ii) of these reasons. Without repeating the detailed particulars of those suggestions again, they generally may be summarized here for present purposes as suggestions that D.C. Crawford’s ITO affidavit notionally be “corrected” by:
excising inaccurate indications that, at the time of the affidavit being sworn, there were no current or valid licences authorizing the legal production of cannabis at the Waterford property, nor any other type of cannabis licencing permitting the cultivation/production of cannabis at that property;
amplifying the evidence presented in the affidavit to make clear that, although there may not have been any current cannabis licence issued pursuant to the CA in relation to the Waterford and Delhi properties per se:
a. a licence had been issued to 2705000 Ontario Inc., (the corporation in respect of which Mr Kofman was a director, and the mailing address of which was that of the Waterford property), to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches; and
b. the same or similar industrial hemp licencing extended to authorize similar activity at the Delhi property;
excising what essentially were inaccurate indications that Mr Kofman had no known legal occupation; and
amplifying the evidence presented in the affidavit to make clear, (to the extent it would not otherwise be made clear by the amplification noted above), that Mr Kofman had a known legal occupation, as the director of a corporation licenced to cultivate and sell industrial hemp in the form of flowering heads, leaves and branches.
iii. For reasons already noted above, I nevertheless was not satisfied that it would have been appropriate in any event to make the further excisions and amplifications, effectively suggested by defence counsel, that would remove references to the stated belief of D.C. Hillier relied upon by D.C. Crawford, and/or the independent stated belief of D.C. Crawford, that cannabis plants seen growing at the Waterford property and/or being transported from the Waterford property, (e.g., to the Delhi property), were illicit cannabis marihuana plants, and essentially replace such references with indications that the plants in question were industrial hemp cannabis plants, legally cultivated and/or sold pursuant to the aforesaid licence in that regard issued to 2705000 Ontario Inc., the corporation in which Mr Kofman was a director, and which had the Waterford property as its mailing address. Again, and without limiting the generality of the foregoing:
As emphasized by defence counsel, (and confirmed by evidence elicited by defence counsel from D.C. Crawford in cross-examination), cannabis marihuana plants and cannabis hemp plants are often cultivated and harvested in a similar way, (and therefore in the same location or type of locations and under similar conditions), and can be very similar in appearance, particularly when viewed from a significant distance such as an aerial view during a flyover of such growing plants.
To state the obvious, possession of a license permitting the legal production and/or sale of industrial hemp cannabis does not negate the possibility of the holder of such a license engaging in the illegal production and/or sale of illicit marihuana cannabis instead of and/or in addition to the licensed production and/or sale of industrial hemp cannabis.
As noted above, D.C. Crawford indicated elsewhere in his ITO affidavit that he was cognizant at the time, through experience acquired via previous police investigations, of the reality that persons involved in the illegal production, distribution and sale of cannabis often hide their nefarious activities behind the veil of a licence; e.g., to produce and sell illicit cannabis.
As also noted above, D.C. Crawford indicated elsewhere in his ITO affidavit that the police had intercepted communications between Mr Kyle and a number of different individuals expressly discussing the manipulation and abuse of valid licenses issued pursuant to the CA, to further the operations of the extensive illicit marihuana cannabis production and distribution being run by Mr Kyle and his various associates.
In such circumstance, the reported beliefs of D.C. Hillier relied upon by D.C. Crawford that cannabis plants observed at the Waterford property and/or being transported to the Delhi property were illicit cannabis marihuana plants, and/or D.C. Crawford’s independently formed beliefs in that regard, were not demonstrably inaccurate warranting excisions and/or corrective amplifications. Again, they may or may not have been demonstrably accurate or inaccurate after the fact, depending on the actual nature of the cannabis that was observed at the time of the relevant police surveillance. However, as noted above, ultimate accuracy or inaccuracy of the information upon which an ITO affidavit relies is not the proper focus of warrant validity determination. In my view, the precise/actual nature of the cannabis plants observed by police at the Waterford property and/or Delhi property was not something that was known or could have been known by the police, let alone by D.C. Hillier or D.C. Crawford, at the time of the relevant ITO affidavit being sworn.
iv. Assuming for the sake of argument and/or in the alternative that one nevertheless made the other notional excisions and amplifications outlined above, (i.e., removing inaccurate indications that there were no current/valid licences authorizing the production and/or sale of cannabis plants at the Waterford and/or Delhi properties, and that Mr Kofman had no know legal occupation), in my view that arguably would have altered some of the probability calculus underlying a determination of whether the resulting “corrected” ITO affidavit presented facts and inferences providing reasonable grounds for issuing the challenged warrants from an objective perspective; i.e., a determination as to whether the revised and remaining information set forth in the “corrected” ITO affidavit still provided a “reasonable” or “credibly-based” probability, (again, a practical, non-technical and common sense probability, and a standard below even the balance of probabilities), for reasonably believing at least some evidence on the basis of which the challenged warrants could have issued. In particular:
If Mr Kofman had a known legal occupation, (i.e., operation of a corporation licenced to produce and sell industrial hemp cannabis), that would tend to undermine, to some extent, the probability of assertions or inferences, implicit if not explicit in D.C. Crawford’s ITO affidavit, that Mr Kofman was supporting himself by engaging in illegal activity, such as the production, distribution and/or sale of illicit cannabis and/or illicit cannabis products; a consideration that, in turn, might undermine, to some extent, the probability that evidence of such illicit cannabis or cannabis products or related activity would be found at properties associated with Mr Kofman; e.g., at Mr Kofman’s residence in London, or at the Waterford and Delhi properties owned and/or operated by the corporation in which Mr Kofman was a director.
If the corporation in which Mr Kofman was a director was licenced to produce and sell industrial hemp cannabis was doing so legally at the Waterford and/or Delhi properties, that would tend to undermine, to some extent, the probability of the stated belief of D.C. Hillier relied upon by D.C. Crawford, and/or the independent stated belief formed by D.C. Crawford, that the cannabis plants observed at the Waterford and/or Delhi properties were illicit cannabis marihuana plants, (i.e., rather than legal industrial hemp marihuana plants), and/or implicit if not express assertions that such plants and properties formed at least part of the source of illicit cannabis and illicit cannabis products being distributed by Mr Kyle and his various associates, in turn undermining the probability that illicit cannabis and evidence of offences contrary to the CA would be found at the Waterford and/or Delhi properties.71
e. In my view, however, such considerations would not have resulted in the “corrected” ITO affidavit, (i.e., excised and amplified in the manner outlined above), thereby failing to present at least some evidence that might reasonably be believed, on the basis of which the challenged warrants could have been issued. Without limiting the generality of the foregoing:
i. Those excisions and amplifications arguably would have done little or nothing to alter or undermine the ample grounds, outlined above, for D.C. Crawford’s stated belief that there had been multiple, widespread and ongoing violations of the CA, via the extensive operation being run by Mr Kyle and his associates; e.g., to distribute and sell, inter alia, large amounts of illicit cannabis and cannabis related products.
ii. While those excisions and amplifications regarding Mr Kofman having no known legal occupation arguably would have lowered the probability of Mr Kofman having to engage in such illicit drug activity to support himself financially, in my view they nevertheless would not substantially undermine the reasonable grounds set forth in the ITO affidavit for issuing the challenged warrants. Without limiting the generality of the foregoing:
Perhaps it would go without saying, but the ongoing experience of this court provides constant reminders of the reality that those engaged in legal income producing activities nevertheless also frequently resort to illegal income producing activities as well in an effort to augment their income.
It bears repeating that the relevant issue, in determining warrant validity, is not whether there were reasonable and probable grounds to believe that a particular accused, (e.g., Mr Kofman), was committing a crime at a specified location in respect of which a search warrant was requested. The material inquiry is whether the ITO affiant had reasonable and probable grounds to believe that an offence had occurred, and that evidence of the offence would be found at the specified occasion.
iii. In my view, those suggested excisions and amplifications also essentially would have left, almost completely untouched, the numerous and substantial indications that Mr Kofman was an individual involved in the extensive drug trafficking operation being carried out by Mr Kyle and his associates, and use of Mr Kofman’s residence as a location to, from and/or in which such illicit cannabis and cannabis products were being moved and/or stored, such that evidence of CA-related offences would be located there, regardless of whether or not Mr Kofman also was possessed of other properties capable of being used and/or being used to cultivate illicit cannabis. Details of those other indications are set out above, but once again included, for ease of reference:
evidence of significant ongoing interaction between Mr Kofman and Mr Kyle, but also between Mr Kofman and Mr Godoy-Velasquez; the two individuals effectively identified as the two leading or principal actors or coordinators of the extensive and well-coordinate operation trafficking in significant quantities of illicit cannabis and cannabis-related products;
evidence of Mr Kyle repeatedly attending at Mr Kofman’s residence, at different times, and usually only briefly for a matter of minutes, either before or after attending confirmed storage locations for illicit cannabis and/or cannabis products, or on his way to interactions with others regarded by D.C. Crawford as indicative of drug trafficking;
evidence of Mr Kyle repeatedly removing boxes from Mr Kofman’s residence and transporting them to other locations used principally if not exclusively for the confirmed storing and packaging of illicit cannabis products, (with the police thereafter confirming that the contents of at least one such box, similar to that transported by Mr Kyle from the residence of Mr Kofman, contained illicit cannabis-related product), and evidence of Mr Kyle’s movement of boxes in that regard being consistent with other observed movement of items by Mr Kyle and Mr Godoy-Velasquez to and from other locations where illicit cannabis was being stored, processed and/or packaged;
evidence of a police-monitored communication between Mr Kyle and another male wherein Mr Kyle, while at a confirmed storage and packaging location for illicit drugs, (2250 Blackwater), described illicit cannabis products he promised to deliver to the other male, with an indication that he would “be there shortly”, before Mr Kyle thereafter proceeded directly to Mr Kofman’s residence; and
evidence of other unknown individuals making short attendances at Mr Kofman’s residence for only a few minutes, with at least one of those individuals leaving boxes at Mr Kofman’s residence before departing.
iv. In my view, those suggested excisions and amplifications would have diminished but not eliminated the existence of a “reasonable” or “credibly based” probability of evidence of the described CA-related offences being located at the Waterford property. In that regard:
It bears repeating that the quality of presented evidence in that regard need not rise to the standard of proof beyond a reasonable doubt, and that the applicable threshold investigative standard is instead one even below the balance of probabilities.
In this case, even after the other notional revisions or “corrections” to the ITO affidavit identified above would have been made, (i.e., to remove inaccurate indications of there being no current licences permitting use of the Waterford property for production and sale of cannabis, and to add an indication/confirmation of the licence issued to 2705000 Ontario Inc. authorizing the legal cultivation and sale of industrial hemp cannabis), in my view the evidence presented by D.C. Crawford still would have included indications of the following:
a. Mr Kyle and his associates were engaged in a large-scale illicit drug operation involving, inter alia, the distribution and sale of large quantities of illicit cannabis and illicit cannabis products.
b. Those large amounts of illicit cannabis and related illicit cannabis products clearly were being sourced from somewhere, and it was reasonable to believe that all or some of that illicit cannabis and cannabis product was being sourced from someone with whom Mr Kyle maintained an association, and who had the ability to cultivate or produce such illicit cannabis.
c. Through 2705000 Ontario Inc., (the corporation in which Mr Kofman was a director), Mr Kofman effectively had that ability; i.e., to use all or part of the corporation’s rural property to cultivate illicit marihuana cannabis, instead of or in addition to the licenced cultivation of industrial hemp marihuana. Mere existence of the industrial hemp licence issued to the corporation did not negate that possibility, and reasonably perceived probability. To the contrary, the police, (and D.C. Crawford in particular), were possessed of:
i. experience acquired through multiple investigations confirming that those involved in the illegal production, distribution and sale of illicit cannabis frequently hide their nefarious activities behind the veil of licenced cannabis activity; and
ii. information that Mr Kyle was actively working with others in this particular illicit cannabis operation to manipulate, use and abuse valid licences issued under the CA to conceal the operation’s illegal activities relating to illicit cannabis and illicit cannabis products.
d. For the reasons outlined above, (which I will not repeat again here), there were numerous indications that, inter alia, Mr Kofman was closely associating with Mr Kyle and Mr Godoy-Velasquez; that Mr Kofman’s residence was being used in connection with the aforesaid illegal operation to distribute large quantities of illicit cannabis and illicit cannabis products; that Mr Kofman accessed at least one of the major facilities (the Bryanston property) obviously being used in connection with that illegal drug operation; that Mr Kofman transported equipment apparently used in the illicit cannabis operation being led by Mr Kyle and Mr Godoy-Velasquez from the Bryanston facility to the Waterston property; that Mr Kofman was heard to engage in conversation including discussion of a need to maintain secrecy in relation to certain activities apparently relating to cannabis; and that Mr Kyle and Mr Godoy-Velasquez both visited the remote rural Waterford property on a number of occasions.
e. Having regard to the totality of such considerations, in my view, even a version of D.C. Crawford’s ITO affidavit, “corrected” to include the excisions and amplifications outlined above, still provided reliable evidence, that might reasonably have been believed, indicating that the Waterford property was being used in whole or in part, (despite the possibility of its licenced use to cultivate industrial hemp cannabis), to cultivate illicit marihuana cannabis being used as a source of a supply for the extensive illicit cannabis and cannabis product operation being carried on by Mr Kyle and his associates. In particular, in my view, there was some evidence, that might reasonably have been believed, adequately supporting a reasonable or credibly-based probability, (on a practical, non-technical and common-sense approach), that evidence of related offences contrary to the CA would be located at the Waterford property, on the basis of which the relevant search warrant authorization in that regard could have issued.
40In short, viewed properly in its totality, (rather than a parsed fashion emphasizing possible frailties of individual considerations viewed in isolation), I think the information that would have been provided in the redacted and truncated ITO affidavit sworn by D.C. Crawford, even with the identified excisions and amplifications noted above, would have gone beyond mere suspicion, conjecture, hypothesis or a fishing expedition; i.e., in terms of the indicated belief that there had been contraventions of the CA, and that cannabis in respect of which there had been such contraventions, other offence-related property, and/or evidence of such offences would be located in Mr Kofman’s residence and at the Waterford property.
41In particular, I think a reasonable person, standing in the shoes of D.C. Crawford, with his experience and training, and with similar access to the information described above that is capable of being considered in determining the accused’s application, reasonably could have believed that the facts as “corrected” probably existed as asserted, and reasonably have drawn the same inferences.
42They were not the only inferences that could have been drawn, but in my view they were reasonably available inferences.
43There would, in turn, have been sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that there had been contraventions of the CA, and that cannabis in respect of which there had been such contraventions, other offence-related property, and evidence of such contraventions would be found at Mr Kofman’s residence and the Waterford property, as identified by D.C. Crawford.
44Having regard to the totality of the circumstances, the standard for issuing valid search warrants in relation to those properties accordingly was met. The challenged warrants were properly issued and valid.
Residual discretion
45As noted at the outset, however, a challenge to validity of the issued search warrants based on the suggested provision of insufficient information, (in turn rendering the ostensibly preauthorized searches warrantless and a breach of the accused’s Charter rights), was not the only basis on which the accused sought to have the challenged warrants set aside.
46In particular, even if the warrants authorizing a search of the accused’s residence and the Waterford property were found to be valid, (i.e., insofar as sufficient information and the requisite reasonable grounds for issuing such a warrant were found to have been presented), it was argued that the warrants nevertheless should be set aside in any event through exercise of the court’s residual discretion in that regard.
47The accused also had the burden of establishing that the situation justified exercise of that residual discretion, and I was not persuaded that he had done so in this case.
48Without limiting the generality of the foregoing:
a. For the reasons outlined above, there was indeed a relevant oversight or failing that occurred during the course of the extended police investigation known as Project Gainsborough; i.e., the investigation which led, in part, to issuing of the impugned search warrants obtained by police in relation to Mr Kofman’s residence and the Waterford property, based on the ITO affidavit prepared and submitted by D.C. Crawford. In particular, it was not denied that the police could and should have made all appropriate cannabis-licensing inquiries vis-à-vis Health Canada in relation to targeted individuals, entities and places of interest, (including inquiries relating to possible industrial hemp licensing in that regard), and reported the results of those inquiries to the ITO affiant and reviewing justice; i.e., so that those results could be presented and taken into consideration by the reviewing justice prior to the challenged search warrants being requested and issued. In retrospect, that clearly was not done; i.e., insofar as D.C. Metcalfe apparently failed to ask Health Canada whether any industrial hemp licensing had been issued to 2705000 Ontario Inc., the formal owner of the Waterford property, which also listed the Waterford property as its address. The information that would have been obtained by the police, in response to such inquiries, would have included revelation of the industrial hemp licence that had been issued to 2705000 Ontario Inc., and which was capable of being applied in relation to licensed/legal cultivation of hemp cannabis at its Waterford property. That information then could have been relayed to D.C. Crawford, who in turn could have included that additional information in his ITO affidavit. None of that occurred.
b. However, as also noted above, an error or omission in an ITO affidavit is not a sufficient basis, on its own, to find bad faith and/or set aside an issued search warrant.
c. Nor, in my view, was there any evidence whatsoever to suggest, let alone indicate, that the oversight, error and resulting omission in that regard reflected any “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. Without limiting the generality of the foregoing:
i. The presented evidence made it clear that the police were very alive to the need to make such appropriate cannabis-licensing inquiries to Health Canada in that regard, in relation to targets of interest in the Project Gainsborough investigation, (including inquiries regarding the possibility of relevant hemp cannabis licences being issued to such targets), and the corresponding need to circulate resulting relevant information to other officers participating in the investigation, including D.C. Crawford. As noted above, D.C. Metcalfe had been assigned specific responsibilities in that regard, and clearly was reporting back to other officers on a regular basis, (e.g., at meetings and through prepared written reports), indicating information about the Health Canada licensing inquiries being made in that regard and the results of such inquiries, including any information obtained to indicate the existence of relevant hemp licencing.
ii. In my view, there was absolutely nothing in the presented information to suggest, let alone indicate:
that D.C. Metcalfe deliberately failed to make an inquiry of Health Canada that would have led to the discovery of the industrial hemp licence issued to 2705000 Ontario Inc., in respect of which Mr Kofman was a director, and its corresponding potential relevance to the Waterford and Delhi properties;
that D.C. Metcalfe made such an inquiry and obtained results from Heath Canada in that regard, confirming the existence of the industrial hemp licence issued to 2705000 Ontario Inc., but deliberately failed to report those results to other officers, including D.C. Crawford;
that D.C. Crawford was ever made aware of that industrial hemp licence issued to 2705000 Ontario Inc., and/or that there had been any failure to make an appropriate inquiry of Health Canada in that regard, prior to swearing his ITO affidavit; and/or
that D.C. Crawford deliberately omitted a reference to any such licence in his submitted ITO affidavit, or otherwise withheld such information from the reviewing justice who was asked to issue and did issue the challenged search warrants.
iii. In short, I see nothing whatsoever in the presented evidence to suggest any deliberate, intentional, bad faith and/or fraudulent effort on the part of the police, let alone on the part of the ITO affiant D.C. Crawford, to deceive the reviewing justice or otherwise subvert or abuse the warrant application process.
iv. As noted above, there occasionally may be cases where a lack of care, (i.e., non-deliberate carelessness), will be so egregious and “sufficiently serious” that it justifies setting aside an otherwise valid search warrant. In my view, however, this is not one of those cases. Without limiting the generality of the foregoing:
Our Court of Appeal has emphasized that such cases are rare, bearing in mind that the residual discretion exists to prevent subversion of the warrant application process, and not to punish the police or send them a message that carelessness or negligence will not be tolerated; e.g., in cases, such as this one, where there is no evidence of deliberate, fraudulent or intentional misleading, or any indication that the police and/or relevant ITO affiant were proceeding in an off-handed or cavalier manner.
D.C. Metcalfe apparently failed to make an inquiry that should have been made; i.e., in relation to possible hemp licensing issued to the corporation that owned the Waterford property, and in respect of which Mr Kofman was a director, even though the Waterford property had become a target of interest and its corporate ownership was known. In my view, however, the circumstances do not suggest that failure occurred in any broader context; i.e., anything suggesting more widespread failure on the part of police to recognize the importance of the cannabis licensing regime, and the corresponding importance of making appropriate ongoing licensing inquiries in an effort to ensure that all relevant results in that regard were obtained and conveyed to other officers involved in the Project Gainsborough investigation, (including the contemplated ITO affiant D.C. Crawford), with a view to making sure that the investigation and reviewing justice would be proceeding with due regard to all relevant information, including any indications that certain observed activity might reflect licensed and therefore lawful activity. Specific responsibilities were assigned and routinely carried out in that regard, with D.C. Metcalfe routinely making such relevant Health Canada licensing inquiries, and reporting results to other officers, in the course of this extended and complicated evolving investigation involving multiple persons, entities and locations of interest. In retrospect, those assigned responsibilities were carried out imperfectly, and existence of the particular industrial hemp licence issued to 2705000 Ontario Inc. was missed. In my view, however, nothing in the evidence suggests that the police approached that Health Canada licensing aspect of the investigation in a manner exhibiting any careless, offhanded or cavalier attitude sufficiently serious to justify exercise of the court’s residual discretion invoked by the applicant; i.e., nothing indicating intentional, careless or reckless subversion of the warrant application process in the sense required to warrant exercise of the court’s residual discretion to invalidate an otherwise valid search warrant. Without limiting the generality of the foregoing, it seems not altogether surprising that, in an investigation of this size and scope, an incidental step that should have been taken by the police, (among the many steps they were taking), was not taken through apparent inadvertence. However, even if the failure of D.C. Metcalfe and/or other officers to detect the existence of the particular industrial hemp licence issued to 2705000 Ontario Inc. might be characterized as negligence, in my view the circumstances did not amount to gross negligence.
I also see nothing to indicate or even suggest that D.C. Crawford, in particular, proceeded in any offhanded or cavalier manner, or in bad faith. To the contrary, as indicated above, I accept that he approached his task as affiant of the ITO in an honest and diligent manner, necessarily relying, in the logistical circumstances of Project Gainsborough and in good faith, on a belief that all concerned, including D.C. Metcalfe, were doing their jobs thoroughly and reporting any relevant information that needed to be provided to the reviewing justice; information that D.C. Metcalfe then did his best to present and convey via his ITO affidavit.
Without limiting the generality of the foregoing, to the extent the court’s residual discretion in relation to warrant validity exists in part to assist the court in addressing, discouraging and/or otherwise preventing police corruption subverting the warrant application process, (e.g., via the strategic editing or omission of information being provided to a reviewing justice being asked to issue a search warrant), I see no evidence of such concerning behaviour in this case.
v. In my view, the indicated circumstances therefore did not meet the deliberately high standard for invoking the court’s residual discretion for invalidating an otherwise valid search warrant; i.e., owing to any perceived abuse of process on the part of the police generally, or the ITO affiant in particular.
vi. Without limiting the generality of the foregoing, I was mindful of defence counsel submissions emphasizing that the relevant failure of police to detect the industrial hemp licence issued to 2705000 Ontario Inc. reflected insufficient awareness of and respect for the licencing system now created to regulate and authorize the cultivation of industrial hemp, in a manner distinct from the licensing of activities related to the cultivation/production and sale of marihuana cannabis, and the corresponding reasonable expectation of an industrial hemp licensee to be reasonably free from disturbance while going about such licenced activities within that authorized sphere of activity. However:
In my view, it also should be recognized and acknowledged that receipt of an industrial hemp licence cannot and does not effectively immunize any cannabis-related operation from police investigation, scrutiny and possible intervention via a search warrant application; e.g., where the totality of circumstances provides a reasonable or credibly-based probability for believing that any such licence, (if it exists), may the subject of abuse and nefarious unlicensed cannabis-related activity.72
In my view, it also needs to be emphasized that the residual court discretion upon which the applicant sought to rely exists to prevent subversion of the pre-authorization process relating to contemplated searches by the police. It does not exist to reinforce the integrity or intended operation of the licensing scheme relating to different forms of cannabis. The distinction is subtle, but important.
49I accordingly declined to set aside the otherwise valid warrants via any exercise of my residual discretion in that regard.
Conclusion
50For the reasons outlined above, I found that the challenged search warrants were properly issued, (i.e., valid), and that there was no adequate basis demonstrated to set them aside pursuant to any exercise of the court’s residual discretion in that regard.
51The relevant searches conducted pursuant to the said warrants therefore were authorized by law, and they accordingly were not unreasonable on the basis of there being no valid preauthorization search warrants having been issued in that regard. As noted above, there also was no suggestion that the warrants were executed in an unreasonable manner.
52In my view, there accordingly was no demonstrated violation of the rights guaranteed to the accused by section 8 of the Charter, and therefore no demonstrated consequential breach of the rights guaranteed to him by section 9 of the Charter.
53In the circumstances, there was no need to consider application of s.24(2) of the Charter.
54The pretrial application brought by Mr Kofman was dismissed accordingly.
Ian. F. Leach
Justice I.F. Leach
Date: July 28, 2025
Footnotes
- All references to charges against Mr Kofman reflect the nature and/or state of such charges at the time of the accused’s pretrial application addressed herein. They are not intended to reflect or comment upon the nature or state of those charges during or after the proceedings at trial, which have subsequently taken place.
- The formal municipal address of the relevant property is 94 Concession 10, Townsend, Waterford, with the “Concession 10” road apparently also being known as “Cherry Valley Road” in that particular area, Townsend being a township within the community of Waterford, (a small community situated between Simcoe and Cambridge), and the township and community both lying within Norfolk County, Ontario. All of that gave rise to the rural farm property in question being referred to somewhat inconsistently by various names during the police investigation, in the written material filed by the parties in connection with this application, and during the course of oral submissions; e.g., with the property alternatively being referred to as “94 Concession 10” or the “Concession 10” property, the “Cherry Valley” property, the “Townsend” property, and/or the “Norfolk” property. For the sake of clarity, I asked the parties to refer to the property in question as “the Waterford property”, indicating my intention to do the same. In the result, all references herein to “the Waterford property” should be construed accordingly.
- Although defence counsel made passing reference in submitted application material and oral submissions to an alleged breach of the rights guaranteed to Mr Kofman by section 9 of the Charter, it also was clarified and confirmed by defence counsel during the course of oral submissions that the alleged violation of Mr Kofman’s section 9 Charter rights was a suggested concomitant of the alleged section 8 Charter violations, and therefore dependent on the same arguments and analysis offered in support of the alleged section 8 Charter violations. In other words, the arrest of Mr Kofman was said to be arbitrary and unlawful, and a breach of Mr Kofman’s section 9 Charter rights, only because it was carried out as part of the ostensibly authorized searches of the Waterford property and Mr Kofman’s residence, and/or was based upon evidence discovered during execution of the search warrants which were said to be unlawful. There was no