Court File and Parties
Court File No.: CR-24-0000075-00 Date: 2025-10-30 Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
Brandon Sero (Applicant)
– and –
Marie Miller (Applicant)
Counsel:
- Lynn Ross, for the Crown
- Liam Thompson, for Brandon Sero
- Mark Snider, for Marie Miller
Heard: February 3, 4, 5, March 4, July 2, August 5, 6, 11, 12, 2025
Reasons for Decision on Charter Application
Justice K. Muszynski
Introduction
[1] Brandon Sero and Marie Miller are charged with numerous offences following the execution of a Controlled Drugs and Substances Act search warrant in their shared residence on February 8, 2024 wherein police seized fentanyl, cocaine, methamphetamine, cell phones, and a taser. The search warrant was executed just days after seventeen reported opioid overdoses in the city of Belleville requiring medical treatment in twenty-four hours.
[2] Mr. Sero brings this application pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude the seized evidence on the basis that the search was unlawful and constituted a breach of his s. 8 Charter rights. Specifically, Mr. Sero challenges the validity of the warrant to search the shared residence. Ms. Miller supports the Charter application.
[3] There were numerous court attendances to manage the process of the application which included the Crown's request to rely on step six of the process set out in R. v. Garofoli. With the consent of all parties, I provided several bottom-line rulings during the hearing with a promise to release written reasons at a later date. I have incorporated those rulings into these reasons.
[4] On July 2, 2025, there was a formal re-election to proceed to trial by judge alone. On the same date, the parties confirmed that the outcome of the Charter application would be determinative of the issues and no trial would be necessary.
Issues
[5] The following issues required rulings throughout the hearing:
a. Initial request to cross-examine the affiant of the Informations to Obtain ("ITOs");
b. Sufficiency of judicial summaries for the purposes of step two and six;
c. Request to re-open cross-examination of the affiant;
d. Request for "Pascal disclosure" with respect to individuals Mr. Sero was communicating with through text messages that seemingly relate to drug transactions;
e. Request to hold a hearing to assess whether the confidential human sources referred to in the ITOs were in fact material witnesses or police agents (i.e. a Basi hearing).
[6] The broader issue to be determined on this application relates to the validity of the February 8, 2024 search warrant. More specifically, based on the record before the issuing justice, as amplified on review, could the February 8, 2024 search warrant have issued? If not, or in any event, what is the appropriate remedy under s. 24(2) of the Charter?
Background Facts
[7] In early 2024, Ontario Provincial Police (OPP) and Belleville Police Services were investigating drug trafficking activities involving Mr. Sero. The investigation included applying for and receiving various judicial authorizations. Warrants were issued on January 30, 2024, by Justice of the Peace Peltzer, February 7, 2024, by Justice of the Peace Doelman, and February 8, 2024, by Justice Griffin of the Ontario Court of Justice.
[8] The January 30, 2024 warrant authorized the search of Mr. Sero and Ms. Miller's shared residence located at 5 Marsh Drive in Belleville. It was never executed. The February 7, 2024 warrant authorized tracking and transmission data recording of Mr. Sero's cell phone. It was never executed. The February 8, 2024 warrant authorized a search of the shared residence and electronic devices located therein. This warrant was executed on the day it was issued. Fentanyl, methamphetamine, cocaine, alleged proceeds of crime, and a taser were located in the residence. Two cell phones were located on Mr. Sero's person and were seized.
[9] Mr. Sero and Ms. Miller were charged with possession of fentanyl, cocaine, and methamphetamine for the purpose of trafficking (Counts #1, 2, 3), possession of proceeds of crime, possession of a prohibited weapon, a taser (Count #6), traffic in fentanyl, cocaine and methamphetamine (Counts #7-12). Mr. Sero was further charged with one count of possession of a prohibited weapon while prohibited from doing so (Count #5).
[10] The parties agree that the focus of the application is the February 8, 2024 warrant and supporting ITO.
The February 8, 2024 ITO
[11] Detective Constable Corey Bowen works in the Organized Crime Enforcement Bureau of the OPP. He has been a police officer since 2012. At the time the subject ITO was drafted, he had been the affiant of over 40 previous judicial authorizations. D/C Bowen was the affiant of all three ITOs in this case.
[12] The February 8, 2024 ITO sought judicial authorization to search Mr. Sero and Ms. Miller's shared residence for fentanyl, cocaine, and methamphetamine. The ITO sets out D/C Bowen's background and experience in law enforcement, information from three confidential sources, results of police surveillance, and information received from police databases, as grounds to believe that the identified controlled substances would be found at the shared residence at the identified time.
Confidential Source Information
[13] The ITO disclosed to the defence was heavily redacted to protect the identities of the confidential sources.
[14] Based on his training and experience, in the ITO D/C Bowen states: "most confidential police informers are concerned about their personal safety or the safety of their families if their identities were revealed or inadvertently disclosed. Because of the inherent risks associated with being a confidential police informant, I have a legal duty to ensure anonymity."
[15] D/C Bowen includes additional information related to the confidential sources in this case:
a. "The confidential informants in this investigation provided information to me or to other officers on the assurance that their identity would remain anonymous."
b. "Detailed information regarding these informants' backgrounds, credentials, and the information they provided will be attached in Appendix "D" for judicial review."
c. "Source #1 is a registered OPP informer who has been providing information as a Confidential Informer for an extended period of time. The informer has supplied information to the Handler, a sworn police officer, under the condition that his/her identity would not be disclosed. The informer has explicitly requested informer privilege in relation to his/her information. The informer has stated that he/she would be subject to some sort of retaliation, including the real possibility of serious bodily harm or death, if his/her identity was disclosed."
d. "Source #2 is a registered Belleville Police informer who has been providing information as a Confidential Informer for an extended period of time. The informer has supplied information to the Handler, a sworn police officer, under the condition that his/her identity would not be disclosed. The informer has explicitly requested informer privilege in relation to his/her information. The informer has stated that he/she would be subject to some sort of retaliation, including the real possibility of serious bodily harm or death, if his/her identity was disclosed."
e. "Source #3 is a non-registered OPP informer who has been providing information as a Confidential Informer for a short period of time. The informer has supplied information to the Handler, a sworn police officer, under the condition that his/her identity would not be disclosed. The informer has explicitly requested informer privilege in relation to his/her information. The informer has stated that he/she would be subject to some sort of retaliation, including the real possibility of serious bodily harm or death, if his/her identity was disclosed."
[16] Although the ITO states that the background information and credentials of the confidential sources are attached to the ITO as Appendix D, in fact, Appendix D that was placed before the issuing justice was comprised only of the criminal records of the confidential sources. There was no information provided to the issuing justice regarding the motivation of the sources or more particular information about the historic reliability of information obtained from the sources.
[17] The information included in the ITO from Confidential Source #1 is as follows:
a. Mr. Sero is dealing "meth and fetty" in Belleville and is selling a lot of coke in Belleville and Trenton.
b. Mr. Sero is supplied by guys from Toronto.
c. Mr. Sero uses the phone number ending in -4711 to set up deals.
d. Details regarding the location of where Mr. Sero conducts his drug deals, the location where Mr. Sero keeps his drugs, a description of the drugs that Mr. Sero sells, the price that Mr. Sero charges for the drugs; and ways that Mr. Sero is transported to the drug deals.
[18] The information included in the ITO received from Confidential Source #2, is as follows:
a. Mr. Sero's phone number (note: ends with -4711).
b. Mr. Sero has been staying at Ms. Miller's place on Marsh.
c. Mr. Sero is selling "coke and fetty".
d. The quantity of drugs Mr. Sero is selling per week.
e. A description of drug deals involving purchases from Mr. Sero.
[19] The information included in the ITO from Confidential Source #3, includes the following:
a. Mr. Sero is staying at 5 Marsh Drive with a girl.
b. The price for which Mr. Sero is selling "fetty".
Police Surveillance
[20] Information from police surveillance of Mr. Sero and of his shared residence with Ms. Miller (5 Marsh Drive), was included in the ITO to support D/C Bowen's grounds for believing CDSA substances would be found at the shared residence. Excerpts from the surveillance include:
a. Surveillance was conducted on February 1, 2024. Mr. Sero and Ms. Miller were observed to leave 5 Marsh Drive on two occasions. According to D/C Bowen, it appeared that Mr. Sero and Ms. Miller were aware that they were being watched by police and had attempted to evade surveillance.
b. Observations from January 31, 2024:
i. Mr. Sero attends at the Hastings and Prince Edward Health Unit.
ii. Mr. Sero is observed briefly visiting an apartment building on North Park Street briefly before heading back to 5 Marsh Drive.
iii. Surveillance was interrupted when contact with Mr. Sero was lost on two occasions when he entered parks.
c. On January 27, 2024, Mr. Sero is observed entering 5 Marsh Drive.
d. On January 16, 2024, an unidentified person enters 5 Marsh Drive and exits 14 minutes later, going to Arby's where he meets a person in a vehicle briefly and then leaves in a taxi.
e. On January 8, 2024, Mr. Sero is observed meeting with Ibrahim Muhia at 5 Marsh Drive. Mr. Muhia is a known drug dealer in Belleville that was arrested on January 17, 2024 where a large quantity of fentanyl and methamphetamines were seized upon search. The same day, Mr. Sero is observed meeting with two different males for short periods of time, which is indicative of drug trafficking. One of these males is Aiden Baker. A Belleville Police occurrence report was generated involving a complaint made by Mr. Baker's landlord in December of 2023 who discovered cocaine in Mr. Baker's unit. The meetings between Mr. Sero with two known members of the drug subculture suggests the meetings could be drug related.
f. On January 5, 2024, Mr. Sero is observed using a key to gain entry to 5 Marsh Drive. Police also observe Mr. Sero walk to Motel 5 and knock on the door of a hotel room and be granted entry. According to D/C Bowen, drug dealers will often use hotel rooms to cut and portion their product.
Police Records / Occurrence Reports
[21] In the ITO, D/C Bowen cites records in the possession of the OPP and Belleville Police Service related to Mr. Sero, including:
a. A search of a police database indicates that Mr. Sero's reported address, as of August 30, 2019, was Apartment 4-64 Charlotte Street, Belleville, Ontario.
b. Mr. Sero has approximately 61 OPP occurrences linked to him dating back to 2001.
c. Mr. Sero has approximately 88 Belleville Police occurrences linked to him dating back to 1994.
d. An occurrence report dated October 20, 2023, wherein Belleville Police responded to a possible impaired driving call. When police attended at the scene, they observed a female slumped over the steering wheel of a parked motor vehicle. Drug paraphernalia was observed next to the female, who was assumed to be impaired by drugs, the suspicion being fentanyl. The female was transported to the hospital. In investigating the incident further, police were able to track the actions of the female's vehicle through downtown traffic cameras. Mr. Sero was observed to meet with the female in her vehicle two hours before the impaired driving call was received. On this basis, it was believed that Mr. Sero had provided the female drugs before her medical episode.
e. An occurrence report from June 6, 2022, outlines an event that occurred in Belleville wherein Mr. Sero was a passenger in a vehicle that was subject to a traffic stop. Police searched Mr. Sero and located suspected fentanyl, cocaine, and methamphetamine on his person and was charged with three counts of possession for the purpose of trafficking.
f. A criminal records check was completed by D/C Bowen on January 26, 2024 which revealed that Mr. Sero had two prior convictions for possession of substances prohibited under the CDSA for the purpose of trafficking, amongst many other convictions.
Grounds to Believe
[22] D/C Bowen sets out the following grounds to believe that fentanyl, cocaine and methamphetamine would be found at 5 Marsh Drive:
a. Recently, police have received information from "three independent confidential informants indicating that Brandon SERO is a source of both Fentanyl, Cocaine and Methamphetamine" in the City of Belleville.
b. Source #1 indicates that Mr. Sero is a source of fentanyl, cocaine, and methamphetamines within Belleville.
c. Source #2 corroborates Source #1 stating that Mr. Sero is a source of fentanyl, cocaine and methamphetamines within Belleville.
d. Source #3 corroborates Source #1 and #2 that Mr. Sero is a source of fentanyl within Belleville.
e. All three of the sources state that Mr. Sero is living on Marsh Drive.
f. D/C Bowen has found that individuals involved in the sale of controlled substances keep a supply of the substances or commodity on hand. When the supply diminishes, they will try to re-supply themselves to have product for sale.
g. Based on his training and experience, he is aware that persons involved in the production and distribution of controlled substances will generally weigh and package the substance prior to distribution. They will generally weigh and package the illegal substances within an area they feel safe, most often their residence.
h. Based on his training and experience, D/C Bowen has found that persons who traffic controlled substances often keep some sort of records to help track the business dealings and keep these records in an area controlled by the trafficker, which could be their personal residence.
i. D/C Bowen believes that "in combination with my personal observations, physical surveillance and the compelling information received from (3) Confidential Sources that there is a constellation of discernible facts and inferences that can only lead to one viable conclusion; that Brandon SERO is trafficking fentanyl, cocaine, and methamphetamines from his residence located at 5 Marsh Drive, Belleville and that Brandon Sero is currently in possession of fentanyl, cocaine, and methamphetamines."
[23] D/C Bowen concludes the ITO by noting that on February 5, 2024, there was a large influx of opioid overdoses in Belleville, resulting in over 17 individuals having to be medically treated. D/C Bowen states: "I believe that Brandon SERO is a source of fentanyl and responsible for supplying individuals with fentanyl. Therefore, it cannot be ruled out that Brandon SERO is partially responsible for these overdoses."
The Garofoli Process
[24] The process for challenging a search warrant or wire tap obtained by reliance on information from confidential informants is set out in the decision of R. v. Garofoli, where the objective is to disclose as much information as possible to the defence without breaching informer privilege. The six steps process is as follows:
1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
[25] Regardless of the Crown's ultimate plan to apply to rely on step six and ask the court to consider the unredacted ITO to support the issuance of the February 8, 2024 search warrant, the earlier Garofoli steps were followed.
Garofoli Steps Two - Five / Requests for Additional Disclosure / Initial Leave to Cross-examine the Affiant
[26] The Crown disclosed redacted versions of the ITO to the accuseds, relying on informer privilege to justify withholding the unedited versions. To assess the appropriateness of the redactions, it was agreed that it would be most efficient to proceed to an ex-parte, in-camera hearing with the Crown and D/C Bowen and seal the recordings of those proceedings.
[27] During the initial ex-parte, in-camera session, the redacted versions of the ITO were compared with the unredacted versions. D/C Bowen was questioned under oath about the necessity of each redaction and whether it was strictly required to maintain informer privilege. In some cases, the Crown agreed to remove the redactions to portions of the ITO that would not breach informer privilege. Once open court resumed, a summary of the nature of D/C Bowen's evidence during the ex parte, in-camera session was read into the record.
[28] Mr. Sero requested all source documents in the possession of D/C Bowen concerning the information provided by the confidential informants, as well as their reliability and credibility assessments. D/C Bowen's notes, a will-say statement from D/C Thompson, a will-say statement from D/C Bowen, and tip sheets authored by Detective Sergeant Coughlin were identified as such source documentation. Redacted copies of the source documentation were disclosed and filed as exhibits. Unredacted versions of the documentations were filed as sealed exhibits. As additional information was unredacted, new versions of the documents were filed as exhibits. The goal at this stage was to determine the proper extent of the redactions and to compel disclosure of as much information as possible without breaching informer privilege.
[29] After the ITO and source documentation were unredacted as much as possible without risking a breach of informer privilege, the Crown prepared draft judicial summaries of the redacted information for review of the court. The judicial summaries were revised on several occasions until the maximum amount of information was disclosed without breaching informer privilege. Each version of the judicial summaries was filed as a separate exhibit.
[30] Once the extent of disclosure and the judicial summaries were finalized, Mr. Sero's request for leave to cross-examine D/C Bowen was considered. Ultimately an agreement was reached on the on areas on which D/C Bowen would be cross-examined. Specifically, leave was granted to cross-examine D/C Bowen with respect to the omission of the background information and credentials for the confidential sources from Appendix D to the ITO as well as an omission related to a police records search that was completed for the phone number that confidential sources reported as belonging to Mr. Sero.
Cross-examination of the Affiant - Testimony of D/C Bowen
[31] During his testimony, D/C Bowen confirmed that his colleague, Detective Constable Thompson, was the handler for Confidential Source #1. He further confirmed that, by the time that he drafted the ITO, he had seen a will-say statement from D/C Thompson in relation to information received by the source including details about the source's pedigree. D/C Thompson's will-say statement notes that Confidential Source #1 was providing information to police for financial considerations. Further, it states that the handler is unaware of a situation where the informer has intentionally lied or supplied misleading information for an investigation or any situations where a search warrant was successfully challenged or denied because the informer's information was deemed unreliable or not credible. D/C Bowen knew this information at the time that the ITO were drafted.
[32] Detective Sergeant Coughlin of the Belleville Police Service was the handler for Confidential Source #2. D/S Coughlin prepared tip sheets summarizing contact with the source, including informational reports provided by the source, and comments about the source's credibility and motivation. D/C Bowen did not have a will-say statement, or any tip sheets related to Confidential Source #2 when he drafted the ITO, however, he testified that he had seen the tip sheets when he had used the source on a prior occasion. The tip sheets authored by D/S Coughlin confirm that the source was motivated by both financial and court considerations and provide details related to D/S Coughlin's relationship with the source. D/C Bowen's evidence was somewhat unclear as to whether he was aware of the source's motivation, credibility or reliability at the time the ITO was drafted.
[33] D/C Bowen was the handler for Confidential Source #3. A will-say statement, authored by D/C Bowen after the fact, was disclosed in relation to information provided by Confidential Source #3. In addition to the informational reports by the source, the will-say statement notes that the source has never been used in any judicial authorizations where arrests have been made and charges were laid and that the source was motivated by both monetary and court considerations.
[34] D/C Bowen included the informational reports from the three confidential sources in the body of the ITO. Further he noted his understanding that the sources only supplied information in exchange for the promise of anonymity. Copies of the sources' criminal records in were in Appendix D. He testified that while he had some background information about the motivation, credibility and reliability of the sources at the time he authored the ITO, he did not include this information in the ITO. D/C Bowen testified that this was an oversight, and that this pedigree information should have been before the issuing justice. D/C Bowen has no explanation as to why this information was omitted other than it was accidental.
[35] There are comments in the ITO, mostly contained in footnotes, wherein D/C Bowen states that each confidential source provided information to police on the promise of anonymity and were fearful of repercussions should their identity become known. D/C Bowen was questioned about these comments and confirmed that he used a boilerplate template. In re-examination, D/C Bowen testified that at the time the ITO was drafted, he knew that all three confidential sources came forward only due to the promise of anonymity. D/C Bowen testified that despite the use of a template, he would not have included these comments if they were untrue.
[36] The second area where leave to cross-examine was granted related to a police record search of Mr. Sero's purported phone number. D/C Bowen was questioned about a notation on one of the tip sheets stating that the phone number sources identified as belonging to Mr. Sero was run through a police database and was found to be registered to an unrelated third party in 2017. D/C Bowen did not include this information in the ITO. When questioned as to why it was omitted, D/C Bowen testified that he believed that the record from 2017 information was dated and that police had information that the individual that was previously registered to the number had a more current phone number. D/C Bowen testified that he did not believe that the information from the database search undermined the information received from the confidential courses about Mr. Sero's phone number. Further, D/C Bowen noted that it is common for people involved in drug trafficking to switch phones frequently. It is for these reasons the result of the police records search was not included in the ITO.
Sufficiency of Judicial Summary – Step Six
[37] As noted previously, recognizing that the redacted ITO, standing alone, could not support the issuance of the warrant, the Crown applied under step six to have the trial judge consider so much of the excised material as is necessary to support the authorization. In Garofoli, it is made clear that a judge should "accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function". The objective at this stage is to balance competing interests of "law enforcement and protection of informers" and the "accused's right to make full answer and defence".
[38] The parties were given an opportunity to make submissions as to whether the proposed final versions of the judicial summaries would make Mr. Sero and Ms. Miller sufficiently aware of the nature of the redacted materials to challenge it in argument or by evidence.
[39] The Crown's submission was that the judicial summaries were sufficient.
[40] Mr. Sero argued that there was one area where the judicial summaries were deficient. His submission was that the judicial summaries lack sufficient information to enable him to challenge the assertions that the information from the confidential sources was corroborated. Mr. Sero referred to judicial summaries of the confidential source information that clarifies that certain redactions in the ITO relate to a specific location, which was noted to have been corroborated. Mr. Sero questioned whether police observations during surveillance indeed corroborate reports by the confidential sources as it relates to a certain activity occurring in a certain location, as opposed to simply observations of Mr. Sero being in that location for an entirely innocent purpose. Further, Mr. Sero took issue with the fact there was no detail as to whether the confidential sources obtained the same information from one another. If this was the case, Mr. Sero argued that police cannot claim that the information was truly corroborated.
[41] In my view, despite the redactions, Mr. Sero and Ms. Miller were provided with sufficient information in the form of the judicial summaries with which to challenge the warrant. Indeed, Mr. Sero effectively identified areas where the court would be concerned about the extent to which the source's information was in fact corroborated. For this reason, I granted the Crown's step six application and consider the totality of the unredacted material to reach a conclusion on the validity of the warrant.
Request for Further Leave to Cross-examine D/C Bowen
[42] As noted above, on consent of the Crown, and with leave of the court, counsel for Mr. Sero cross-examined D/C Bowen on two identified areas.
[43] After the initial cross-examination of D/C Bowen, the finalization of disclosure, the assessment of the appropriateness of redactions, and the approval of the final judicial summaries, Mr. Sero sought an opportunity to conduct further cross-examination of D/C Bowen. By this time, Mr. Sero was represented by new counsel within the same law firm. Mr. Sero sought to cross-examine D/C Bowen in the following areas:
a. The contents of the criminal records of the confidential sources.
b. Whether D/C Bowen knows how long specifically the confidential sources had been providing information to police (i.e. what did he mean by an extended period of time or a short period of time or whether it was the first time the source was used).
c. Whether D/C Bowen knows whether the sources had provided unintentionally misleading information, or whether the source was deemed unreliable, but the warrant survived despite the unreliability.
[44] The Crown opposed the request for further leave.
[45] An accused person is not entitled to cross-examine the affiant of an ITO as of right. An accused must demonstrate that the cross-examination is likely to elicit information that would discredit the information that was placed before the issuing justice. It is not an "overly stringent" burden to overcome, but the scope of cross-examination is limited to the issue of whether the impugned warrant could have issued.
[46] On the issue of the criminal records of the confidential sources, the fact that the sources had criminal records was information that Mr. Sero and Ms. Miller were aware of at the time of the original cross-examination. Indeed, D/C Bowen was cross-examined with respect to the criminal records. A request for further details, including how many pages each record comprised, was denied on the basis that it would have the potential to reveal identifying information about a confidential source. Further, courts have found that the specifics of an informant's criminal history and record are not proper subjects of cross-examination.
[47] The precise track record of each source in relation to information supplied in other investigations could result in inadvertent disclosure their identities. In his earlier cross-examination, D/C Bowen admitted that background information and pedigrees were inadvertently omitted from Appendix D of the ITO. He was cross-examined on this omission and testified about what he knew about the historic reliability of each source. The request to conduct further cross-examination of D/C Bowen on more precise details of his knowledge, I find is not reasonably likely to elicit any "testimony tending to undermine the existence of the 'reasonable grounds' required for the issuance of the search warrant or tending to reveal any intent to mislead the justice".
[48] For these reasons, Mr. Sero's request for further leave to cross-examine D/C Bowen was denied.
Request for "Pascal Disclosure" with Respect to Individuals Mr. Sero was Texting, Seemingly Related to Drug Trafficking
[49] After judicial summaries were finalized, Mr. Sero requested disclosure from the Crown about persons that he alleged are material witnesses in relation to the trafficking counts on the indictment.
[50] To support the trafficking counts, the Crown relies only on the text message communications extracted from two cell phones seized from Mr. Sero and the Digital Communications Report of D/C Bowen that concludes that certain messages are indicative of drug trafficking.
[51] Mr. Sero requested the complete extraction reports from the cell phones shortly after receiving D/C Bowen's report in the fall of 2024. Despite several requests, the Crown only produced the complete extraction reports on July 31 and August 1, 2025 respectively. Due to the late disclosure, Mr. Sero requested, and was granted, an adjournment to review the complete extraction reports and file supplementary materials.
[52] At the return of the application, Mr. Sero made a request for the contact information, criminal records, and occurrence reports of police involvement with all individuals who exchanged text messages with Mr. Sero that alluded to trafficking CDSA substances to the extent the police can identify those individuals. The Crown opposed the request for disclosure.
[53] After hearing submissions from counsel, I gave a bottom-line ruling denying Mr. Sero's request for additional disclosure. These are my reasons for doing so.
[54] In R. v. Pascal, the Court of Appeal for Ontario allowed a motion to admit fresh evidence, specifically, the criminal record and outstanding charges of an eyewitness that testified at trial that had not been disclosed previously. The Crown and defence counsel, in Pascal, agreed that the eyewitness' criminal record and the existence of the outstanding charges was subject to the first party disclosure obligation and should have been disclosed. The focus of the appeal in Pascal was on the appropriate remedy given the non-disclosure. The Court ultimately ordered a new trial.
[55] Disclosure of a witness' criminal history at trial is required to provide a means of challenging the credibility of that witness' testimony, particularly if there is a record of crimes of dishonesty.
[56] In this case, the Crown does not intend to call any of the individuals with whom Mr. Sero was communicating with via text message that allude to drug trafficking as witnesses at trial. It is the communications themselves, as analyzed by D/C Bowen, that the Crown adduces as evidence of trafficking, not evidence from the individuals involved in those text message communications. In this respect, this case can be distinguished from Pascal.
[57] As the individuals who authored the text message communications with Mr. Sero are not being called as witnesses at trial, the Crown is not obligated to provide the requested disclosure in relation to those individuals.
Request to Hold a Hearing to Assess Whether the Confidential Human Sources Referred to in the ITOs Were in Fact Material Witnesses or Police Agents (i.e. a Basi Hearing)
[58] The adjournment following the late disclosure of the cell phone extractions provided Mr. Sero the opportunity to assess whether there was evidence to support a theory that the confidential sources referred to in the ITO were in fact material witnesses or police agents that would not be entitled to informer privilege.
[59] Mr. Sero then filed supplementary materials wherein he speculates as to the identity of the confidential sources by comparing information from the confidential sources in the ITO with police surveillance reports, and the text messages.
[60] At the next attendance, counsel for Mr. Sero commented that was now in a position to put his client's best foot forward in making a request for a hearing on the sources' entitlement to informer privilege. The Crown opposed Mr. Sero's request for a hearing. After hearing submissions, I gave a bottom-line ruling denying Mr. Sero's request. My reasons for doing so are as follows.
[61] On the issue of material witnesses, Mr. Sero relied on jurisprudence that establishes that if an informant is the only material witness to a crime their identity must be disclosed. The law is very clear that informer privilege can only be pieced when an accused's innocence is at stake. It was conceded that this is not a case where Mr. Sero's innocence is at stake. For this reason, I declined to allow a hearing on whether the confidential sources were material witnesses.
[62] Mr. Sero also requested that the court order a hearing to determine whether the confidential sources were acting as police agents or "agent provocateurs". A police agent is someone that goes into the field and participates in the investigation at the direction of police. Police agents are not entitled to informer privilege.
[63] Mr. Sero requested that an ex-parte, in-camera hearing be directed to take place in the absence of the accused and defence counsel to determine whether the confidential sources are indeed police agents, a process which is endorsed in R. v. Basi.
[64] In support of his request, Mr. Sero relied on supposed "real time" reporting by the confidential sources to police, which he stated was indicative of an agency relationship. He argued that when compared, the information from the sources to police seems to line up with text message communications and police surveillance attempts.
[65] Mr. Sero was under surveillance by police leading up to his arrest. Text message communications involving Mr. Sero from this time period and information provided to police by the confidential sources from the same time period are bound to overlap with police observations during their surveillance. I am not satisfied that overlapping information is more than coincidental and is not indicative that the confidential sources were acting as police agents.
[66] Mr. Sero also relied on the fact that the earlier two warrants were never executed as evidence that the police were working with an agent. With respect to the prior two warrants, in the February 8, 2024 ITO, D/C Bowen disclosed that a warrant was granted on January 30, 2024, to search Mr. Sero and Ms. Miller's shared residence but was not executed as no observations were made of a meet during that period between Mr. Sero and his drug supplier. The tracking warrant that was granted on February 7, 2024, was also disclosed in the February 8, 2024 ITO. The tracking warrant was still active at the time the February 8, 2024 ITO was sworn and the resulting search warrant was issued. In my view, D/C Bowen provided a satisfactory explanation regarding the prior two warrants. The fact that the prior two warrants were not executed is not indicative of the confidential sources acting as a police agent.
[67] The sources in this case were motivated by financial and/or court considerations. Police informants are rarely altruistic in their motivations. In R. v. Kebede, R.F. Goldstein J. writes: "Informants who are motivated by purity of heart are as uncommon as vegetarians in a steakhouse: you can find them, but not very often." This sentiment is also expressed by K.L. Campbell J. in R. v. McKenzie:
Confidential informants are often selfishly motivated in providing information to the police about the criminal activities of others. They often seek monetary compensation for the confidential information they provide to police. Confidential informants often provide information to the police about such criminal activities on multiple occasions over time. Indeed, common sense suggests that the more reliable they are proven to be over time, the more likely the police are to continue to rely upon their confidential information.
[68] Similarly, the fact that confidential sources may have been engaging in illegal activity does not necessarily mean that they were acting at the direction of police when doing so.
[69] Mr. Sero's request for a Basi hearing came after D/C Bowen's initial cross-examination wherein he testified that two of the three confidential sources were registered as informants with police services that had been providing information for an extended period of time and the other source had been providing information as a confidential informer for a short period of time. D/C Bowen testified that all three confidential sources supplied information to police under the condition their identity would not be disclosed, all three confidential sources explicitly requested informer privilege, and all three confidential sources stated that they would be subject to some sort of retaliation if their identity was disclosed. In my view, D/C Bowen's evidence established that the confidential sources were indeed confidential informants entitled to informer privilege.
[70] Considering the strength of D/C Bowen's testimony in this regard, and the lack of evidentiary foundation to support Mr. Sero's theory that the sources were acting as police agents, there was no basis to justify ordering a Basi hearing.
Could the February 8, 2024 Warrant Have Issued?
[71] The crux of this application is whether the February 8, 2024 search of Mr. Sero and Ms. Miller's shared residence was executed pursuant to a valid warrant. Mr. Sero takes the position that the warrant could not have issued based on the record before the issuing justice. As the Crown successfully applied to rely on step six of Garofoli, in reaching this conclusion, I am entitled to consider the unredacted version of the ITO.
[72] Mr. Sero submits that the warrant is facially invalid because the ITO fails to disclose reasonable and probable grounds to believe that controlled substances would be found at 5 Marsh Drive. He argues that the critical link between the controlled substances and the residence is missing. Further, Mr. Sero submits that the confidential source information should be carefully assessed by looking at whether it was sufficiently credible, compelling, and corroborated. Mr. Sero is therefore challenging both the facial validity and the sub-facial validity of the warrant.
[73] The Crown takes the position that when the entirety of the record placed before the issuing justice is reviewed, it is clear that the warrant could have issued.
General Principles for Reviewing a Search Warrant
[74] The starting point of the analysis is that a warrant is presumed to be valid unless proven otherwise. The onus is on the applicant to prove invalidity.
[75] The test for reviewing the validity of a search warrant is set out in Garofoli: "The reviewing judge does not substitute his or her view of that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere".
[76] In R. v. Morelli, the Supreme Court of Canada confirmed that: "The question is not whether the reviewing court would itself 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."
[77] Mere suspicion or hypothesis cannot establish reasonable grounds, but reasonable grounds should not be equated with a requirement of proof beyond a reasonable doubt, nor even on a balance of probabilities.
Omission of Material Facts
[78] The drafter of a search warrant application has an obligation to put forward full and frank disclosure of material facts for the authorizing judicial officer.
[79] D/C Bowen acknowledged this obligation and agreed that the background information and credentials of the confidential sources should have been included at Appendix D to the ITO and placed before the issuing justice. I find that this was a material omission. With respect to the record search that revealed another individual was registered to the phone number confidential sources reported as belonging to Mr. Sero, I am satisfied with D/C Bowen's explanation as to why this information was not included in the ITO. I do not find this omission to be material.
[80] When there is non-disclosure of a material fact in the warrant application, the reviewing judge's role is to assess whether the authorizing judicial officer could have granted the authorization had the omission not been made in the first place. The record is "amplified" to include the material omissions. However, the process of amplification cannot be used to benefit the Crown. If a material fact is omitted from the ITO that would increase the likelihood that the warrant could have issued, it cannot be considered as part of the amplification process.
[81] In this case, the record is therefore amplified to include the omissions relating to the motivation of the confidential sources, which Mr. Sero submits detracts from their credibility, but not the omissions about the historic reliability and credibility of the sources, which would arguably enhance the credibility of the sources.
Confidential Informants
[82] In R. v. Debot, the Supreme Court of Canada confirmed that a strength of a confidential source should be assessed by considering whether they have provided information that is: (i) credible, (ii) compelling, and (iii) corroborated. An evaluation is then required on the totality of the circumstances. Weaknesses in one of the three Debot factors can be compensated by strengths in the others.
(i) Is the Source Information Credible?
[83] D/C Bowen erroneously omitted the motivation of the confidential sources from the ITO. Amplification reveals that the sources were supplying information because they were motivated by financial and/or court considerations. The motivation of the sources is one factor that I consider when assessing the credibility of the information supplied to police. However, I am mindful that confidential informants are rarely altruistic in their motivation and that compensating sources is reality in police intelligence gathering. This was recognized recently in R. v. Jones: "While the CI had a financial motivation to assist the police, we observe that, while this is a factor to consider financial compensation is quite often provided to informants and should not, in and of itself render a source uncredible."
[84] There is no inherent reason to infer that a person contracting to provide information to police about criminal wrongdoing will be incentivized to provide false or unreliable information. This is particularly the case where an individual has an ongoing relationship with police as a registered informant. It is an objective reality that police would have no motive to deal with an unreliable source. The ITO states that Confidential Source #1 and #2 were registered police informants that had been providing information to police for extended periods of time. The fact that a source is formally registered with a police department speaks to their reliability.
[85] Further, there are potential penal consequences where a confidential informant deliberately tells police false information about criminal wrongdoing by another person or attempts to obstruct the course of justice where it is apparent that the information will be used for the purpose of arrest or to obtain a search warrant.
[86] While it would have been preferable to have more detailed background, including the historic reliability, of the sources before the issuing justice, in my view, there was sufficient information in the ITO, even when considering the amplified record, to conclude that the information being supplied was credible.
(ii) Is the Source Information Compelling?
[87] Even reviewing the redacted ITO, it is evident that the information from Confidential Sources #1 and #2 contain significant detail of the prohibited substances being trafficked, Mr. Sero's address and phone number, the quantity and price of drugs he deals, where he traffics, his methods of transportation, the source of his drugs being from Toronto, and the fact that he sells to other dealers.
[88] The judicial summaries further the compelling nature of the information provided by Confidential Sources #1 and #2, including firsthand observations related to Mr. Sero, more detail, specific time periods, locations, frequency of drug sales, location of stored drugs, how drugs are packaged, and precise description of the drugs being sold.
[89] Given the adequacy of the judicial summaries, I am also entitled to consider the unredacted ITO contents to assess whether the information provided by the sources was compelling. Having done so, I find the information communicated to police by Confidential Sources #1 and #2 to be compelling.
(iii) Is the Source Information Corroborated?
[90] The information provided to police by the confidential sources was corroborated by the receipt of similar accounts from different sources, from police surveillance, and by considering Mr. Sero's criminal history.
[91] Confidential Sources #1 and #2 are described in the ITO as being "independent". Both sources provide a number of similarly inculpatory details about Mr. Sero. There is no rule that states that witnesses of suspect trustworthiness cannot provide support for one another.
[92] Police surveillance close in time to the search warrant application confirms Mr. Sero's connection to the Marsh Drive address, his association with Ms. Miller, and his phone number. These "innocent" biographical facts considered upon the totality of the record can nevertheless be supportive or confirmatory of an informant's overall account.
[93] Beyond confirming biographical facts, police surveillance revealed Mr. Sero engaging in apparent drug-related activities, meeting with individuals known to be involved in the drug subculture and attempts to evade police surveillance by Mr. Sero and Ms. Miller.
[94] Mr. Sero's criminal history reveals recent convictions for possession of drugs for the purpose of trafficking, which suggests ongoing involvement in the drug world. Further, Mr. Sero's lengthy criminal record is a circumstance which "may demonstrate a lack of trustworthiness as evinced by an enduring disrespect for the law."
[95] In my view, information provided by the confidential sources, particularly Confidential Source #1 and #2, was corroborated to such an extent that it increases the reliability of the source information.
(iv) Totality of the Circumstances' Evaluation
[96] When the totality of the record is considered, it is evident that this is not a situation where police acted after performing a perfunctory investigation on mere hunch or speculation based upon bald allegations by confidential informants with suspect credibility.
[97] While additional information to address the credibility of the information received from the sources should have been included in the ITO, the information was very compelling and was corroborated through police investigation.
Conclusion: Validity of Search Warrant
[98] When considering the ITO as a whole, amplified to include the motivation of the confidential sources, I find that there was sufficient credible and reliable evidence to permit the issuing justice 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.
[99] The February 8, 2024 search warrant is valid and the resulting search of Mr. Sero and Ms. Miller's shared residence is therefore lawful. Accordingly, I find that there was no violation of Mr. Sero and Ms. Miller's s. 8 Charter rights.
Section 24(2) Analysis
[100] Given my conclusion that the February 8, 2024 search of the Mr. Sero and Ms. Miller's shared residence was conducted pursuant to a valid search warrant, there is no need to consider the admissibility of the evidence seized as a result of the search. However, even had I concluded that the search was illegal, I would nonetheless have still admitted the evidence under s. 24(2) of the Charter. In doing so, I consider: (i) the seriousness of the conduct; (ii) the impact of the breach on the accused's Charter protected interests; and (iii) society's interest in the adjudication of the case on its merits.
(i) Seriousness of the Conduct
[101] The omission of the background information and credentials of the three confidential sources from the ITO was material. Mr. Sero submits that D/C Bowen was either grossly negligent in his duties to make full and frank disclosure or was deliberately trying to mislead the issuing justice by not including this information. The Crown concedes that the omission of this information was material but submits it was an innocent mistake rather than an attempt to subvert the warrant process.
[102] D/C Bowen testified that he had been drafting search warrant applications since 2016. He acknowledged the obligation to make full and frank disclosure when drafting an ITO. He acknowledged that he should have included this information in the ITO or Appendix D and that it was omitted in error. He testified that he did not intend to mislead the issuing justice.
[103] I accept the evidence of D/C Bowen that the omission was accidental. In reaching this conclusion, I consider the fact that the omission included the positive track records for Confidential Sources #1 and #2, in addition to the motivations of all three sources. One would think that if D/C Bowen was trying to mislead the issuing justice to make it more likely that the warrant would issue, he would have included the positive information and omitted only the motivation of the sources. Of course, this is not the case.
[104] There were three separate warrant applications in this case. Each warrant application was reviewed by a different Justice of the Peace or Judge of the Ontario Court of Justice. All three warrants were issued. As noted in R. v. Rocha, "applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights".
[105] Given the obligation of an ITO affiant to make full and frank disclosure, the omission of material facts from an ITO is conduct that should not be endorsed by the court, even it if is accidental. Care must be taken to ensure the judicial officer has received full and frank disclosure.
[106] However, I ultimately conclude that this factor, if not relatively neutral, weakly favours exclusion of the evidence for the following reasons:
a. the omission was inadvertent;
b. there is no evidence of an attempt by D/C Bowen to subvert the warrant process;
c. there were three separate warrant applications;
d. there were three separate warrants issued by three different judicial officers;
e. the omission of the background information and credentials for the confidential sources included information would have strengthened the warrant application;
f. if the face of the ITO did not establish sufficient grounds for issuance of the warrant, it was "extremely close" to doing so.
(ii) Impact on Charter Protected Interests of the Accused
[107] The February 8, 2024 warrant authorized the search of Mr. Sero and Ms. Miller's home. In the search, police discovered evidence of participation in the drug trade, a commercial endeavour. That said, it is accepted that a residence attracts a high degree of privacy protection. An "unconstitutional search of a residence strikes at the heart of the privacy and security of the person interests protected by s. 8 of the Charter." For this reason, this factor favours exclusion of the evidence.
(iii) Society's Interest in the Adjudication of the Case on the Merits
[108] The evidence seized from the search is highly reliable, real evidence, without which, the Crown's case would be gutted. In R. v. Grant, the Supreme Court of Canada noted that the exclusion of relevant and reliable evidence "may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute".
[109] Further, in R. v. Nunn, this court recognized the seriousness of the fentanyl pandemic and the high societal interest in having cases involving trafficking in fentanyl adjudicated on the merits.
[110] The items seized from Mr. Sero and Ms. Miller's shared residence constitute real and reliable evidence of drug trafficking for which there is a significant societal interest in adjudication. This is particularly so given the prevalence of the opioid crisis in the Belleville community. This favours inclusion of the evidence.
Conclusion: Balancing Grant Factors
[111] The accidental omission of material facts from the ITO is regrettable and should not be condoned, however, on the possible continuum of state misconduct it is not overly serious. The impact on Mr. Sero's Charter protected interests is high and the societal interest in adjudicating the case on its merits is also high.
[112] When the Grant factors are weighed, I find that the admission of the evidence seized in the search of his shared residence with Ms. Miller would not bring the administration of justice into disrepute.
Conclusion
[113] Mr. Sero's Charter application is dismissed.
Muszynski J.
Released: October 30, 2025