R. v. Ali-Kashani et al. Date:, 2017 BCPC 366

Citation: R. v. Ali-Kashani et al. Date: 20161108 2016 BCPC 482 File No: 233202 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. Soheil ALI-KASHANI, Alycia Amber RIMES, and Farzad SADEGHI-AMINI RULING ON APPLICATION OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: Baljinder Girn and David Hartney Counsel for the Defendant: Matthew Nathason for Ali-Kashani Counsel for the Defendant: Patrick McGowan for Rimes Counsel for the Defendant: Kristy Neurater for Sadeghi-Amini Place of Hearing: Vancouver , B.C.

Dates of Hearing: July 12, 13, 14, 2016 Date of Judgment: November 8, 2016 [1] This is an interlocutory application by the Defence in this criminal case wherein they seek to challenge the validity of threesearch warrants relating to the alleged residences of the accused in this case and have them set aside as improperly issued. [2] Mr. Ali-Kashani, Mr. Sadeghi-Amini and Ms.

Rimes face charges that, on or about November 1, 2013, they possessed cocainefor the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act. [3] In a prior “Vukelich” hearing (a Vukelich hearing allows the Court to determine if a Charter application should proceed to beheard) I ruled that there were, in fact, issues that were raised by the defence and supported on the materials placed before me thatallowed me to conclude that a Voir Dire in relation to the issuance of the search warrants and the detention, arrest and right to counsel ofthe accused was justified. [4] This is one stage of that Voir Dire.

The parties have suggested, and I have agreed, that the several discrete issues that wereproperly raised can be heard and determined in stages. [5] As indicated above, this stage of the Voir Dire consisted of the Defence making an application to challenge the facial and sub-facial validity of certain search warrants obtained under

Section 11 of the Controlled Drugs and Substances Act that were sought andgranted based on a 292 page Information to Obtain (ITO) filed in support. [6] This application involved hundreds of pages of materials and authorities that were filed by the parties in addition to this verylengthy ITO. As a result, I do not intend to go into great detail with respect to all of those authorities and materials. Nor do I intend torefer to all of the information that is contained in the ITO on this application.

I have tried, in a carefully considered but relativelysummary fashion, to set out the law respecting the test on a review of search warrant authorizations as well as the information containedin the ITO to determine the merit of the applications made. [7] The ITO relies heavily on information obtained from two confidential informants in addition to other investigative informationsuch as observations and surveillance of the targets. Because of the reliance on confidential informants, there are significant portions ofthe ITO that were redacted prior to disclosing it to the defence and the court.

These were necessary, the Crown determined, in order toprotect the identity of the informants. There were other portions of the ITO that were excised with the agreement of counsel for theCrown and the defence (See Exhibit 19). [8] The challenge with respect to the sufficiency of the information employed to obtain the warrant is thus made on the editeddocument. At this stage there has been no “Garofoli” application seeking to cross-examine any witnesses with respect to the issuance ofthe warrants.

However, since information has been redacted from the ITO and therefore the record before me is a different one than whatwas before the authorizing justice, then the defence has characterized this application as a challenge to both the facial and sub-facialvalidity of the issuing warrant. Facial Validity Review [9] On a facial-validity review, there is no “amplified” (i.e., enlarged) record. Rather, a trial judge determines the matter solely onthe basis of the information contained in the ITO.

Based on that information, the judge’s task is to determine whether a Justice of thePeace could (not would) have issued the warrant: R. v. Wilson, 2011 BCCA 252 at para. 39. [10] Justice LeBel in Quebec (Attorney General) v. Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708 (at para. 64) stated: “Ifthe reviewing judge determines that at least one such piece of evidence existed and could reasonably have been believed, to justify theapplication for the warrant, the judge’s examination should stop there”.

Sub-Facial Review [11] Where on a review application the submissions by defence counsel are with respect to a record that extends beyond the fourcorners of the ITO that is sometimes referred to as an issue of sub-facial validity. When what is set out in an ITO has been “amplified”, itis clear from R. v. Garofoli (SCC), [1990] 2 S.C.R. 1421 that a trial judge’s task is still to consider whether a warrantcould (not would) have issued on the basis of the amplified record. Test Relating to Facial and Sub-Facial Challenges [12] In R. v. Boussoulas 2014 ONSC 5542 , [2014] O.J.

No. 4525 (SCJ), Justice Campbell dealt with the test that should beundertaken when there is an attack on both the facial and sub-facial validity of an ITO. The court set out a comprehensive, and accurate,in my mind,

summary of the principles in relation to a review of search warrants in circumstances like the one here. I believe it is worthsetting it out in detail: [6] When a trial judge is asked to review the sufficiency of an information to obtain (ITO) a search warrant, the judge must not approachthe question of the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather, thereviewing judge must determine, based on the record that was before the issuing justice, as amplified on the review, whether the issuingjustice could properly have issued the search warrant.

The question is not whether the reviewing judge would have issued the searchwarrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were"reasonable grounds" justifying the issuance of the search warrant. See R. v. Garofoli, at p. 1452; R. v. Bisson, (SCC),[1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Pires; R.v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8, 30; R. v. Ebanks, 2009 ONCA 851,97 O.R. (3d) 721, at para. 20, leave

denied, [2010] S.C.C.A. No. 84, [2010] 1 S.C.R. ix; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-43; R.v. Sadikov, 2014 ONCA 72 , [2014] O.J. No. 376, at paras. 37-38, 83, 88; R. v.

Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d)213, at para. 3. [7] In approaching this review of the sufficiency of the ITO, the reviewing court must appreciate that the justice who issued theimpugned search warrant made his or her decision based upon the contents of the ITO as a whole, and approached his or her assessmentof the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of the ITO.See R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Evans, 2014 MBCA 44, [2014] M.J. No. 129, at para. 10; R.v.

Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; R. v.Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 52; R.v. Sadikov, at para. 82. . . . [9] When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO and determinewhether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. The recordthat is examined for the purpose of determining the facial validity of the search warrant is the ITO -- and only the ITO. The record is notenlarged or amplified by any additional evidence. See R. v.

Araujo, at paras. 19, 36, 40, 50; R. v. Wilson, at para. 39; R. v. Sadikov, atpara. 37. [10] Where the applicant attacks the validity of a search warrant on a sub-facial basis, such challenge involves an amplified record.The reviewing judge must undertake a more contextual analysis and must consider, on the basis of the record before the justice, asamplified on review, whether there is sufficient reliable information that might reasonably be believed upon which the authorizingjustice could have issued the warrant. See R. v. Araujo, at para. 50-54; R. v. Garofoli, at p. 1452; R. v. Wilson, at para. 40; R.v.

Sadikov, at paras. 38, 87. [11] Of course, search warrants may be attacked on both a facial and sub-facial basis. The accused in the present case has challengedthe validity of the search warrant in both ways. In such circumstances, the reviewing court must stay focused on the ultimate test,namely, whether on the basis of the record before the issuing justice, as amplified on review, but without reference to any excisedinformation, there remains a sufficient basis upon which the justice could have issued the search warrant.

The focus of the inquiry is onwhether the record contains reliable evidence that might reasonably be believed, and on the basis of which the warrant could have issued.See R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at paras. 23-25; R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21, at paras. 9-10; R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341, at para. 34; R. v.

Sadikov, at para. 69, 85-86, 88. [12] In considering the contents of an ITO on a challenge to the validity of a search warrant, it is important to appreciate that suchwarrants are statutorily-authorized investigative aids that are typically issued before any criminal proceedings have been commenced,and are almost invariably drafted by police officers -- often under tight time constraints and without the assistance of any legal advice.Accordingly, the courts have recognized that it is unrealistic and inappropriate to measure the quality of the drafting of such documentsby the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings.

In short, "reasonable latitude" shouldbe accorded to the drafter of an ITO in considering the precision of the language that was used in the document. Few search warrantapplications are perfect. See Re Lubell and The Queen (1973), (ON SC), 11 C.C.C. (2d) 188 (O.H.C.J.), at pp. 190-191; Re Times Square Book Store and The Queen (1985), (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.), at p. 512; R.v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; R. v. Nguyen, at paras. 57-58.

At thesame time, however, a police officer drafting an ITO must always act with integrity and reasonable diligence, being mindful of his or herduty to make full and frank disclosure in ex parte proceedings, and being careful to guard against making inaccurate statements orexaggerated assertions likely to mislead the reviewing justice. See R. v. Araujo, at paras. 46-47; R. v.

Morelli, at paras. 99-103. . . . [14] The court reviewing the ITO is also obliged to consider information that was not disclosed to the issuing justice, keeping in mindthe fact that search warrant applications are ex parte proceedings and that police officers seeking such warrants are obliged to make full,fair, and frank disclosure of all material facts -- whether they implicate the target of the investigation or not.

In circumstances in whichrelevant information has, inadvertently, not been properly disclosed in an ITO, the issue for the reviewing court is whether the issuingjustice, having been apprised of the omitted information, could judicially have issued the search warrant. See R. v. Araujo, at para. 46-47, 57; R. v. Morelli, at paras. 44, 55, 58-60, 96, 102, 131; R. v. Hosie (1996), (ON CA), 107 C.C.C. (3d)385 (Ont.C.A.), at pp. 391-394; R. v. Colbourne (2001), (ON CA), 157 C.C.C. (3d) 273 (Ont.C.A.), at paras. 40-41; R. v. Kesselring (2000), (ON CA), 145 C.C.C. (3d) 119 (Ont.C.A.), at para. 31; R. v.

Nguyen, at paras. 48-51. [13] Justice Campbell had this to say with respect to assessing an ITO when information relating to confidential sources has beenredacted and the reviewing judge has, therefore, a different record before them than the one before the issuing justice: 16 When the ITO contains factual information provided by a confidential informant, and portions of that ITO have been redacted inorder to preserve the confidentiality of that source, according to steps five and six of R.v. Garofoli, at p. 1461, there are two possiblemeans by which the validity of the search warrant may be assessed.

These two options are not mutually exclusive alternatives, but ratherare two possible steps that may be taken sequentially or cumulatively in assessing the validity of the warrant. See R.v. Burgher, 2014ONSC 4527, at paras. 28-36. 17 First, the validity of the search warrant may be assessed solely on the basis of the information revealed by the redacted ITO.

If theCrown relies solely on the redacted ITO, however, and the information has been so heavily redacted that the reviewing judge cannotconclude that the remaining information was sufficient to justify the issuance of the search warrant, the warrant must be set aside.See Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), (ON CA), 173 C.C.C. (3d) 466 (Ont.C.A.),at paras. 10, 22-23. 18 Second, if the editing process renders the search warrant unsupportable, the Crown may apply to have the trial judge consider somuch of the redacted ITO as is necessary to support the search warrant.

However, the judge should only accede to such a request if

satisfied that the accused can be made sufficiently aware, by way of a judicial

summary, of the nature of the redacted material so as to beable to challenge it by argument or evidence. See R.v. Garofoli, at p. 1461; R.v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at paras. 15-17; R.v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 104-108; R.v. Rocha,2012 ONCA 707, 292 C.C.C. (3d) 325, at paras.55-56; R.v. Eftekhari, at paras. 4-5. This is known as the "step six" procedure, as outlined in R.v.

Garofoli, at p. 1461, where Sopinka J.stated: If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much ofthe excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that theaccused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicialsummary of the excised material should be provided if it will fulfill that function.

It goes without saying that if the Crown is dissatisfiedwith the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence Confidential Informants [14] As indicated above, this ITO relies heavily on the information supplied by two confidential informants. The Supreme Court ofCanada in R. v. Debot, (SCC), [1989] S.C.J.

No. 118 at para. 53 set out three questions that should be asked by thereviewing court to determine whether the information relied on by the police from an outside source (confidential informant) is sufficientto justify a search: 1. Was the information predicting the commission of a criminal offence compelling? 2. Where that information was based on a "tip" originating from a source outside the police, was that source credible? 3. Was the information corroborated by police investigation prior to making the decision to conduct the search?

Residual Discretion [15] There does exist a residual discretion on the part of a reviewing judge to set aside a warrant. This could happen is cases wherethere are advertent and strategic omissions made within the warrant that so negatively impact the important principle of prior judicialauthorization that to uphold a warrant (even if it is ultimately found that grounds existed) would bring the administration of justice intodisrepute. [16] For the lack of candour to have the effect of setting aside the warrant, it must, in the words of Justice Cromwell (as he then was)in R. v. Morris 1998 NSCA 229 , [1998] N.S.J.

No. 492 (NSCA) at p. 43 be “so subversive of [the] process that the resultingwarrant must be set aside to protect the process and the preventive function it serves.” This passage from R. v. Morris (above) wasreferred to with apparent approval by Justice LeBel in R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.) at para.54. [17] In the case of R. v. Maton 2005 BCSC 330 , [2005] B.C.J. No. 697 (BCSC), Mr. Justice Romilly said this: 50 In the case at bar, I find that the affiant made some strategic omissions from the information in support of the search warrant.

Infact I find that the information in support of the search warrant was worded so as to intentionally mislead the Justice of the Peace. 51 In the case at bar, I am of the view that the Justice of the Peace could have issued the warrant on the basis of what was left after themisleading portions of the affidavit was excised. I have to remind myself, however, that the purpose of the prior authorization process isto prevent unreasonable searches, not to condemn them after the fact. It is my duty to protect the prior authorization process. To upholdthe warrant in this case would amount to a dereliction of that duty.

I am satisfied that the lack of candour by the affiant in the case at barwas so subversive of the prior authorization process that the resulting warrant must be set aside to protect the process and the preventivefunction it serves. [emphasis added] [18] The British Columbia Court of Appeal recently in R. v. Loewen [2016] B.C. J. 351 declined to comment on the issue of whethersuch discretion exists (paragraphs 24 and 33). [19] In this case, at this stage, as I understand it, the defendants are not submitting that this court consider the residual discretion toset aside the warrant.

The Challenge [20] Essentially, the defence alleges the following:

a) the ITO was insufficient to support the issuance of the warrant;

b) the ITO relies on illegally obtained evidence and information (I should note here that much of this material has been excised byagreement between the parties);

c) The ITO contains unsupported conclusions and opinions;

d) The ITO is misleading and contains material omissions;

e) The ITO contains mere conclusory statements in regards to the reliability and credibility of informants A and B. [21] In the ITO Det. Wong ultimately concluded at par. 249 he had reasonable grounds to believe that offences against theControlled Drugs and Substances Act, had been or would be committed, and that information concerning the commission of theoffences would be obtained by entering and searching four residences. Those are the West Pender suite said to associated to Mr. Ali-Kashani, the Richards Street suite said to associated to Mr. Sadeghi-Amini, the Melville Street suite said to be associated to Ms. Rimes

and a suite on Barclay Street that was said to be associated to a person who is not an accused in this case. [ 22 ] This court must assess, in light of the jurisprudence mentioned above, the sufficiency of this ITO used to obtain these search warrants and determine whether, in the totality of the circumstances, the ITO reveals the necessary "reasonable grounds." [ 23 ] It has been said that there are five requirements to satisfy in persuading an issuing justice to authorize search warrants: 1. What are the grounds for believing that the things to be searched for exist? 2.

What are the grounds for saying that the things to be searched for are at the place to be searched? 3. What are the grounds for saying that the offence has been committed as described? 4. How will the things to be searched for afford evidence of the commission of the offence alleged? 5. What are the grounds for saying that the place to be searched is at the location identified? (See also R. v. Okeke, [1999] O.J. No. 3693 (Ont.S.C.J.) per Justice Hill) [ 24 ] As our Court of Appeal recently reiterated in the R. v. Loewen (above) decision, the review is not a de novo one.

The judge should not simply substitute his or her view for that of the authorizing judge. As they noted in paragraph 35: … the test is: ...

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. [Emphasis in original] ANALYSIS The Information to Obtain [ 25 ] Prior to any consideration of the sufficiency of the ITO, the Crown did concede that there were a number of warrantless searches conducted prior to the issuance of the residential search warrants.

For instance there were ION swabs taken from door handles without a warrant (these swabs test for the presence of controlled substances). In addition, there were observations made after warrantless entries into a secured parking lot. The Crown conceded that excision of the portions of the ITO related to these issues is warranted (See Exhibit 19 on this hearing). [ 26 ] There are 17 parts to Cst. Wong’s ITO. Part of the ITO explains that the Justice of the Peace denied the first application as it related to two of the residences, that being the Melville Street and Barclay Street ones.

These were associated with Ms. Rimes and a gentleman (not before the court in this case) respectively. Cst. Wong added additional information and resubmitted the application for search warrants for all four residences. This application was granted.

Confidential Informants and police investigation [ 27 ] The Crown submits that the information provided by two confidential informants to the police in this case was detailed, compelling and sufficiently corroborated by subsequent investigation that if considered in and of itself, could justify the issuance of the warrants in this case. [ 28 ] The handler for Informant “A” is Cst. Spencer, a transit police officer. It was submitted in the ITO that “A” had provided information proven to be reliable in the past to Cst.

Spencer on approximately 100 occasions. [ 29 ] The ITO then indicates that “A” has provided information a total of approximately 500 occasions. The passages below follow: 67.3.2 Constable SPENCER was able to prove the information as reliable on all but a few occasions.

On those few occasions, the crimes were never reported or there were no witnesses; 67.3.3 Informant “A” has never provided false or misleading information to Constable Spencer; 67.3.4 The information was substantiated by Constable Spencer through other independent means or the information resulted in criminal charges or seizures of guns and drugs. [ 30 ] The defence submission is that this informant could not possibly have provided reliable information on “all but a few occasions” if in fact he/she has provided information some 500 times and only 100 have been proved reliable. [ 31 ] “A” identified Mr.

Ali-Kashani as being involved with drug trafficking around September of 2013. That informant also indicated that “Mikey” was a new worker for Mr. Ali-Kashani. The subsequent police investigation led the police to believe that “Mikey” was, in fact, Mr. Sadeghi-Amini. [ 32 ] “A” gave information regarding associates of Mr. Ali-Kashani who were involved in the trafficking business with him.

This information was corroborated by surveillance wherein several known drug dealers were seen associating with him. [ 33 ] Informant “B” stated motivation for providing information is that he/she is loyal to the handlers and gets some excitement in providing information. “B” has provided information approximately 226 times since 2010. Both informants have been paid for their information in the past.

[ 34 ] The ITO reveals that on occasion “B”’s information has proved to be inaccurate. The handler believes that “B” was not trying to mislead the police but was just passing on information that was heard second hand. [ 35 ] Informant “B” also gave information about Mr. Sadeghi-Amini and how he worked as a driver for Mr. Ali-Kashani’s drug line. Surveillance established that Mr. Sadeghi-Amini was driving vehicles associated to Mr.

Ali-Kashani and apparently meeting with individuals in a manner that was consistent with dial-a-dope transactions. [ 36 ] On October 17, 2013, the police arrested a female who had just met with Mr. Sadeghi-Amini in circumstances that were consistent with a dial-a-dope transaction. That female was arrested inside the Venue nightclub and the police seized cocaine from the female. The arresting officers were told by this female that she had been purchasing narcotics from Mr. Sadeghi-Amini for about 1.5 months (See paragraph 183 of the ITO). [ 37 ] On other occasions the police observed Mr.

Sadeghi-Amini attend the address associated to Mr. Ali-Kashani and then he would be observed in circumstances that were consistent with conducting a dial-a-dope transaction. Defence Submissions [ 38 ] Certainly some of the defence’s submissions regarding problems with the ITO are justified.

Why is it asserted that Informant “A” has “never provided false or misleading information” to the handler and yet it is also asserted that out of 500 times the informant has proven reliable on 100 occasions? [ 39 ] There are indeed excisions in the ITO relating to some of the bases upon which the informants were thought to be credible and reliable.

These excisions are not available to the reviewing judge in determining the reliability or the credibility of that informant. [ 40 ] There are problems with the issuing justice relying upon warrantless searches and seizures as it relates to the ION swabs that were taken and whose results made up part of the ITO. These portions have been excised by agreement of all parties. [ 41 ] There are certainly issues relating to the use of information obtained through analyzing the FOB activity of the targets in this investigation.

The police obtained access to the targeted apartment buildings usually with the permission of the landlords, but not always. They asked the building representatives for security access fobs so that they could gain access to the inner common areas of the buildings. This allowed them to make certain observations of the accused’s movements that they might not otherwise have been able to make. In addition to that the FOB records relating to entries into the buildings were obtained without warrant.

Conclusion with respect to Richards Street and West Pender Street residences [ 42 ] The Crown submits that any past alleged unreliability of a confidential informant does not mean that there is no weight to attach to their current information. They also submit that there are so many observed instances of suspected dial-a-dope transactions that even with excision of large parts of the ITO there still remains a sufficient basis for the issuance of the warrants. [ 43 ] With respect to the Richards Street address (associated to Mr. Sadeghi-Amini) and the West Pender address (associated to Mr.

Ali-Kashani) I must conclude, that there was, in light of the jurisprudence mentioned above, a sufficient basis to conclude that the issuing justice could have found, on the totality of the information that remains after review, the necessary grounds to grant the authorization for these two addresses. [ 44 ] The information provided by the confidential informants was sufficiently credible and sufficiently corroborated that search warrants for these two residences could have been granted. Again, I must remind myself that the review that this court engages in is not a de novo review.

The inferences that the issuing justice clearly drew are not fatally affected by the legitimate issues raised by the defence. The Melville Street address (associated to Ms. Rimes) [ 45 ] The first application (Exhibit 5 on the Voir Dire ) in support of a search warrant for this address was made a few days prior to the one under review in this hearing. That application was rejected as the issuing justice found that there were insufficient grounds linking this residence and another one to the alleged offences. [ 46 ] The ITO here, in paragraphs 1 and 2 explain that history.

Paragraph 2 also indicate the paragraphs within this new ITO wherein new information is contained that purport to address the issue raised by the issuing justice. [ 47 ] The defence asserts that it is not clear whether “new” information provided to the authorizing judicial officer was included in the first application or not. [ 48 ] The test as indicated above is the same with respect to a re-application as it is in relation to an original application .

The question is not whether the reviewing judge would have issued the search warrant, but whether, after review, there continues to exist sufficient reliable information that could have permitted the authorizing justice to conclude that there were "reasonable grounds" justifying the issuance of the search warrant. [ 49 ] In approaching this review of the sufficiency of the ITO, the reviewing court must appreciate that the justice who issued the impugned search warrant made his or her decision based upon the contents of the ITO as a whole, and approached his or her assessment of the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of the ITO.

See R.v. Vu , 2013 SCC 60 , [2013] 3 SCR 657, at para. 16 ; R.v. Evans , 2014 MBCA 44 , [2014] M.J. No. 129, at para. 10 ; R.v. Shiers , 2003 NSCA 138 , 219 N.S.R. (2d) 196, at para. 13 ; R.v. Wilson , 2011 BCCA 252 , 272 C.C.C. (3d) 269, at para. 52 ; R.v. Sadikov , at para. 82 . [ 50 ] That being said, upon reviewing the information in the ITO that is said to support the search warrant authorization for the Melville address it seems clear that the kind of corroboration of informants’ information that related to Mr. Ali-Kashani and Mr.

Sadeghi-Amini was simply not available in relation to Ms. Rimes. [ 51 ] The police received informant information on September 19, 2013 that Mr. Ali-Kashani moved some narcotics to his girlfriend’s place. There is no basis set out for this belief on behalf of the informant. Nor is there any compelling corroboration in the way of observations or independent investigation. [ 52 ] While it may have been reasonable to conclude that Ms. Rimes was in some kind of relationship with Mr.

Ali-Kashani and it may have been reasonable to conclude that she resided or was associated to the Melville Street address the information does not go much beyond that. [ 53 ] There is further information from a confidential informant on October 13, 2013 that Ms. Rimes has cocaine inside her apartment. The basis of this belief on behalf of the informant has been vetted and is therefore not available to be assessed. [ 54 ] In addition, there are a number of observations that simply are not consistent with the theory of the police.

The ITO in places suggests that individuals who are carrying boutique shopping bags are, in the investigator’s experience, carrying narcotics. Ms. Rimes is often seen without any such receptacle and yet the investigators still conclude that she must be concealing narcotics on her person (see paragraph 180.13.1). [ 55 ] There is information that vehicles associated to Mr. Ali-Kashani and Mr. Sadeghi-Amini are in the “area” of Ms. Rime’s residence. Again, there are inferences drawn from this observation. [ 56 ] The bulk of the information relating to Ms.

Rimes essentially is a suggestion that she is guilty by association with Mr. Ali- Kashani. [ 57 ] I can only conclude, upon the appropriate review, and upon considering the vetting and the excisions that were effected (including the basis of Informant “B’s” otherwise bald assertion relayed on October 30, 2013 that there was “recently cocaine at [Ali- Kashani’s] girlfriend’s residence”), that on the totality of the information remaining the issuing justice could not have supported the issuance of the warrant for the Melville address.

CONCLUSION [ 58 ] For the reasons stated, I am unable to conclude that the search warrants relating to the West Pender address and the Richards Street address should be set aside. I find the search warrants were properly issued for those addresses. [ 59 ] Conversely, for the reasons stated above, I find that the issuing justice, after review, could not have properly issued the search warrant as it relates to the Melville Street address. That warrant is set aside. Dated November 8, 2016 ____________________________ Judge David St. Pierre, PCJ