R. v. Vigneswaralingam, 2017 ONCJ 640

ONTARIO COURT OF JUSTICE CITATION: R. v. Vigneswaralingam , 2017 ONCJ 640 DATE: September·26, 2017 BETWEEN: Her Majesty the Queen — And — Prathipan Vigneswaralingam Ruling: Charter Application Heard: June 28, 29, 30 2017; August 5, 2017; September 5, 2017 Oral Decision: September 20, 2017 Judgment released: September 26, 2017 J. Frost ......................................................................................................... Federal Prosecutor D. Midanik ................................................................................. Counsel for the Applicant I. Introduction 3 II.

The Charter Application – s. 8 5 A. Introduction 5 B. Procedural Considerations 6 C. Applicant’s position 6 D. Respondent’s position 7 E. Organization of this Judgment 7 III. The Review 8 A. The Review: Statutory Pre-Conditions and Affiant Obligations 8 B. The Review: Legal Parameters 9 1. The Review: Excision 10 2. The Review: Amplification 11 3. “Step Six” in Garofoli 12 C. The s. 8 Charter Arguments 16

1. Did the affiant possess relevant drug investigation experience as foundational support for inferences urged upon the issuing justice? 16

a) Inferences in support of identity 16

b) Surveillance: March 4, 2016 17

c) Surveillance: April 1, 2016 18

d) Surveillance: April 2, 2016 18

e) Surveillance: April 8, 2016 19

f) Surveillance: April 13, 2016 20

g) Surveillance: April 14, 2016 20

h) Conclusion: Inferences of drug trafficking drawn by the affiant 21 2. Was there objective evidence of drug trafficking? 21

a) Short meetings consistent with drug trafficking 22

(1) The Surveillance Record 22

(2) There were no observed drug transactions 23

(3) The police did not observe the applicant in possession of illegal drugs 23

b) The traffic stop and “takedown” on April 14, 2016 24 3. Was the Confidential Human Source information compelling, credible, and corroborated? 28 4. Was the recital of the applicant’s criminal antecedents misleading? 29 5. Execution of the Search Warrant 31

a) Allegation of Assault 31

b) Dynamic Entry 32 D. Finding: The search warrant 33 IV. Section 24(2) of the Charter 33 A. Introduction 33 B. The Affiant 34 C. Seriousness of the Charter-Infringing State Conduct 35 1. Blake, “Step Six”, and Onus on s. 24(2) 35 2. Factors not attributable to the conduct of the affiant 37 3. Factors attributable to the conduct of the affiant 38 D. Impact of the breach on the Charter- protected rights of the accused 39 E. Society’s interest in an Adjudication of the Case on its Merits 39 F. Balancing 40 Felix J.: I. Introduction [ 1 ] Search warrants are an important tool used by the police in criminal law.

[ 2 ] Confidential human sources [CHS [1] ] are often relied upon by the police when seeking prior judicial authorization for a search warrant. [ 3 ] Search warrant litigation often provokes a tension between competing considerations such as enforcement of criminal law, informant privilege, and full answer and defence. [ 4 ] In this case, the police obtained prior judicial authorization to search the residence of the applicant. Illegal drugs and instruments associated with drug trafficking were seized. [ 5 ] The affiant relied on CHS information to establish reasonable grounds.

It is common today for most properly trained police affiants to prepare warrant applications with a “tear away” appendix (or appendices) detailing fulsome information concerning CHS. In this manner the CHS information is comprehensively addressed in an attached appendix in furtherance of the affiant’s duty to provide full frank and fair disclosure to the issuing justice. Given the affiant has a positive duty to ensure that nothing that might serve to identify the CHS is revealed, it is often stipulated that disclosing the appendix would serve to identify the CHS.

The affiant typically requests that the CHS appendix be sealed by court order for the purpose of preserving informant privilege. [ 6 ] In preparation for trial, a prosecutor, in consultation with the police, will often seek an order unsealing the search warrant materials for the purposes of determining what – if any – information can be disclosed without violating CHS privilege.

The search warrant materials including the ITO are typically provided as disclosure by the prosecutor subject to redactions in furtherance of the prosecutor’s obligation to safeguard informant privilege. [ 7 ] Where the ITO, standing on its own, is insufficient to support reasonable grounds, “Step Six” of Garofoli is available to permit the reviewing court to examine the entire record placed before the issuing justice by the affiant. Under this approach, the reviewing court is made aware of the entirety of the information provided by the affiant to the issuing justice.

The reviewing court must balance the defendant’s right to full answer and defence against informant privilege. Properly addressed, the “Step Six” process produces disclosure by way of a judicial

summary. The judicial

summary ensures that the defendant is sufficiently aware of the nature of the information provided to the issuing justice and permits a challenge to the warrant. [ 8 ] Where “Step Six” is not invoked, the reviewing court is restricted to the “four corners” of the redacted search warrant application material including the redacted ITO.

This means that the reviewing court does not have access to the entire record placed before the issuing justice including any appendices containing CHS information. [ 9 ] The decision in this case turns on the interplay between “Step Six” and the review conducted by a court dealing with a Charter complainant. [ 10 ] In this case “Step Six” was not invoked. This turned out to be a significant procedural decision. [ 11 ] The affiant’s assertion of reasonable grounds conveyed to the issuing justice was founded upon two significant components – police surveillance and CHS information.

As “Step Six” was not utilized, the fulsome CHS information could not be evaluated on review. [ 12 ] Without the CHS information, the affiant’s grounds did not sufficiently address the statutory pre-conditions for issuance. The affiant’s assertion of reasonable grounds was left without the support of the CHS information.

Compounding this circumstance, was the finding that the affiant materially misrepresented certain facts and materially omitted other facts. [ 13 ] Given the record presented, the warrant could not be sustained. [ 14 ] It is an unwelcome and unsatisfactory circumstance to review an incomplete record. An independent issuing justice authorized the search in this case based on all of the information provided by the affiant. The warrant is presumptively lawful. This court, on review was required to examine the conduct of the affiant without access to the full record presented to the issuing justice.

[15] The applicant has established a breach of s. 8 of the Charter. [16] Given the record presented, the redacted ITO did not establish the statutory prerequisites for issuance.

I find that the affiant’srecital in the redacted ITO did not establish reasonable grounds to believe that the asserted offences were occurring nor did it establishreasonable grounds that the items sought would be found within the applicant’s residence. [17] The applicant has established the requested remedy of exclusion of evidence pursuant to s. 24(2) of the Charter. [18] Given the deficiencies identified in the ITO the long term repute of the criminal justice system was better served by the exclusionof evidence. [19] The items seized pursuant to the search warrant are excluded. II.

The Charter Application – s. 8 A. Introduction [20] In the early hours of April 15, 2016 members of the Durham Regional Police Service executed a search warrant on theapplicant’s residence at 1 Winterton Way in Ajax and seized illegal drugs and instruments associated with drug trafficking. [21] The search warrant relied on CHS information and police surveillance of the applicant involved in several short meetings withsuspected drug purchasers. The matter proceeded by “Garofoli application” in aid of an asserted breach of s.8 of the Charter of Rightsand Freedoms [Charter]: R. v. Garofoli, (SCC), [1990] S.C.J.

No 115 (QL) (S.C.C.) [Garofoli]. In separate reasons thecourt granted leave to cross-examine the affiant subject to certain conditions and restrictions. [22] The core assertion made by the applicant was that the affiant did not demonstrate the requisite reasonable grounds in support of as.11 Controlled Drugs and Substances Act [CDSA] warrant. The applicant argued that the affiant lacked reasonable grounds to believethat he was involved in drug trafficking or that the items to be searched would be found within his residence.

The applicant also arguedthat the affiant did not establish that he possessed sufficient background and experience to opine on drug-related investigatoryobservations in support of alleged drug trafficking. The applicant asserted that material misrepresentations and omissions marred theInformation to Obtain [ITO]. Finally, with respect to the execution of the warrant, the applicant alleged that he had been assaulted bypolice officers executing the warrant. B.

Procedural Considerations [23] Both counsel to the applicant and the federal prosecutor agreed that the court’s determination on the Charter application woulddrive the result in this case. If the evidence was excluded the prosecution was at an end. If the evidence was admitted there would be anagreed statement of facts and limited litigation concerning the quantity of illegal drugs seized. [24] It was implicitly agreed that the applicant had standing. Leave to cross-examine the affiant was granted in a separate ruling.

Thecentral focus on the leave application around protection of informant privilege was attenuated by the applicant’s stipulated focus on theaffiant’s reasonable grounds and the absence of reliance on “Step Six”: R. v. Pires; Lising, 2005 SCC 66, at para. 3. [Pires; Lising]; andGarofoli, at para. 149.

[ 25 ] Counsel for the applicant scrupulously followed the court’s ruling on leave and on occasion sought guidance or further leave from the court as the cross-examination evolved. At times the court granted leave to permit further cross-examination because the areas of expanded cross-examination presented no apparent risk to the CHS nor was the cross-examination prolix. C.

Applicant’s position [ 26 ] The applicant asserted that the redacted ITO presented to the court was facially invalid and did not objectively support reasonable grounds. [ 27 ] The applicant also launched a sub-facial attack submitting that once the court excised material misrepresentations and considered material omissions, the only conclusion available was that the affiant failed in his duty to provide fulsome disclosure to the issuing justice. [ 28 ] The applicant particularized these deficiencies (and one issue concerning the manner in which the search was conducted) by developing the following arguments in written and oral submissions in support of the s.8 Charter complaint: 1.

The affiant did not set out any specialized or particularized relevant drug investigation expertise in the ITO and as such where he concluded that surveillance depicted conduct consistent with drug trafficking these conclusions were not adequately supported by his generalized experience as a police officer; 2. There was no objective evidence of drug trafficking associated to the applicant in that there was no objective evidence of any hand- to-hand exchange or other behaviour from which it might be inferred that a drug transaction or transactions had occurred; 3.

The affiant materially misrepresented the facts and materially omitted certain facts concerning the arrest of two persons leaving the applicant’s residence after a suspected drug transaction (the “traffic stop”); 4. The CHS information in the redacted ITO was deficient; 5. The affiant materially misrepresented the fact that there was no drug-related criminal record associated to the applicant; and, 6. During the execution of the search warrant the applicant was assaulted by the police officers and a dynamic entry was not warranted. D.

Respondent’s position [ 29 ] The respondent contested the assertions with the following arguments: 1. The affiant possessed sufficient police experience to support the drug trafficking inferences; 2. The observations and conclusions asserted by the affiant were properly supportive of an inference that the applicant was engaged in drug trafficking; 3. The observations and conclusions asserted by the affiant concerning the “traffic stop” were supportable and reasonable;

4. The affiant did not misrepresent the applicant’s criminal antecedents; and, 5. The applicant was not assaulted during the execution of the search warrant and the circumstances of the dynamic entry did notbreach s.8 of the Charter. E. Organization of this Judgment [30] Prior to addressing the merits of the Charter application I will address the following issues: 1. The statutory pre-conditions of the warrant and affiant obligations; 2. The legal parameters of the Garofoli review; and, 3.

The relevance of “Step Six” in considering the Charter application. [31] After addressing these issues I will move on to address each of the arguments and my findings. [32] Finally, I will address s. 24(2) of the Charter. III. The Review A.

The Review: Statutory Pre-Conditions and Affiant Obligations [33] The affiant, via tele-warrant, sought and received prior judicial authorization to search the residence associated to the applicantlocated at 1 Winterton Way in Ajax under the authority of s.11 of the CDSA. [34] The affiant asserted that he possessed the requisite reasonable grounds to believe that the applicant had committed two CDSAoffences: possession of a controlled substance and possession of a controlled substance for the purpose of trafficking.

The affiant alsoasserted that he had reasonable grounds to believe that instruments associated with drug trafficking would be found within the residence. The objective was to search and seize a variety of drug trafficking instruments and in particular – cocaine and marijuana. [35] The review implicitly requires consideration of the statutory preconditions for issuance. The affiant was required to satisfy theissuing justice that there were “reasonable grounds” (credibly based probability) that the applicant possessed illegal drugs and that hewas engaged in drug trafficking: R. v.

Amare, 2014 ONSC 4119 aff’d 2015 ONCA 673; R. v. Morris (1998), 1998 NSCA 229 ,134 C.C.C. (3d) 539 (N.S.C.A.) [Morris]. The affiant was also required to demonstrate reasonable grounds to believe that evidence inrelation to the offences would be found within the premises for which a search warrant was sought: R. v. Sadikov, 2014 ONCA 72. [36] A reviewing court must be satisfied that the affiant honestly believed that: (1) the applicant was implicated in the offences; (2)what was sought constituted evidence of the offences; and (3) evidence would be found within the premises for which a search warrant

was sought. The reviewing court must also be satisfied that the stated belief of the affiant is supported by information such that thesubjectively held honest belief is objectively sustainable: R v. Storrey, (SCC), [1990] 1 S.C.R 241 (S.C.C.). [37] In evaluating reasonable grounds, the affiant’s training and experience as a police officer must be considered. As a result, theanalysis requires the reviewing court to consider whether a reasonable person, standing in the affiant’s shoes and imbued with theaffiant’s training and experience would have come to the same conclusion: R. v.

Mackenzie, 2013 SCC 50, at paras. 62-63. [38] Finally, given the ex parte nature of the application, it is axiomatic that the affiant had an obligation to fully, frankly, and fairlyoutline material information in the ITO presented to the issuing justice. B. The Review: Legal Parameters [39] The parameters of the review were succinctly outlined by the Supreme Court of Canada in R. v. Campbell, 2011 SCC 32, at para.14: 14 The relevant legal principles are not at issue in this appeal.

Juriansz J.A. correctly followed the approach to reviewing thesufficiency of a warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. In order tocomply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established uponoath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is "not whether the reviewing courtwould itself have issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice toauthorize the warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information fromthe ITO and may have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (AttorneyGeneral) v.

Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [40] Mr. Justice Casey Hill of the Ontario Superior Court of Justice comprehensively summarized the relevant legal guidance on thecore review function in R. v. Persaud, 2016 ONSC 8110, at paragraph 64 [Persaud]: 64 In performing its narrow role of constitutional review of an ITO, various instructive guidelines have been applied by courtsincluding:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Hafizi, 2016ONCA 933(Ont. C.A.), at para. 43; R. v. Campbell, 2010 ONCA 588(Ont. C.A.), at para. 45 (aff'd 2011 SCC 32(S.C.C.)); R. v. Crevier, 2015 ONCA 619(Ont. C.A.), at paras. 66, 74; Nero, at para. 68.

(2) The review takes a practical, common sense approach to all the circumstances (R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R.253 (S.C.C.), at para. 129), considering the narrative of the ITO contextually without piecemeal dissection: Hafizi, at paras. 49-50, 56; R.v. Sadikov, 2014 ONCA 72(Ont. C.A.), at para. 87. (3) "[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors oracts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency ofthe evidence in support of the application": R. v. Nguyen, 2011 ONCA 465(Ont. C.A.), at para. 57.

(4) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (Ont. S.C.J.), at para. 135 (aff’d 2014 ONCA 364(Ont. C.A.)): The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of thedocument, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, acommon sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions inquestion: R. v. Grant (1999), (ON CA), 132 C.C.C. (3d) 531 (Ont.

C.A.) at 543 (leave to appeal refused [1999]S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d)194(C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), (BC CA), 2 B.C.A.C. 73 (C.A.) at79.

(5) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity ofcounsel": Lubell v. R. (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Green, 2015 ONCA 579(Ont.C.A.), at para. 18; R. v. Durling (2006), 2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S. C.A.), at para. 19; R. v. Sanchez (1994),

(ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at p. 364; Chapman v. R. (1983), (ON SC), 6C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(6) That said, as observed by Fish J. in Morelli, at para. 167, police officers "should draft ITOs as precisely and clearly as possible".

(7) It will not be surprising that an ITO will have some flaws — "[f]ew applications are perfect": Nguyen, at para. 58. The questionremains whether, following any amplification and/or excision, the core substance of the ITO could support the justice of the peace'sexercise of discretion to issue the warrant.

(8) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITOaffiant need not attempt to replicate a Crown disclosure brief — the document should be clear, concise, legally and factually sufficient,and "need not include every minute detail of the police investigation": Société Radio-Canada c. Nouveau-Brunswick (Procureurgénéral) (1991), (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C.(3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70 , 241 C.C.C. (3d) 409 (B.C.

C.A.), at para. 43 (leave to appealrefused, [2009] S.C.C.A. No. 165(S.C.C.)). 1. The Review: Excision [41] As stipulated in Garofoli: “. . . the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant . . .their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.”: Garofoli, at para. 56;See also Procureur général c.

Bisson, (SCC), [1994] 3 S.C.R. 1097 (S.C.C.) [Bisson]. [42] Where the review court determines that information provided by the affiant to the issuing justice in the ITO was false,misleading, erroneous, unsupportable, or obtained by virtue of constitutionally violative conduct, the only remedy is excision. There isno authority to excise true or correct information: R. v. Araujo, 2000 SCC 65, at paras. 54-58 [Araujo]; R. v. Ebanks, 2009 ONCA 851, atpara. 28; and Morris. [43] Excision does not result in the automatic vitiation of the search warrant.

That the court engages in excision does not mean thatthe statutory preconditions for issuance were absent: Pires; Lising, at para. 30. After excision and amplification the reviewing courtmust still go on to determine whether the issuing justice could have issued the warrant. 2. The Review: Amplification [44] The sole function of amplification is to cure minor or technical, errors made by the affiant in the ITO placed upon a bedrockfinding of good faith. Amplification is not means by which a reviewing court retroactively authorizes a search. As explained by theSupreme Court of Canada in R. v.

Morelli, 2010 SCC 8, at paras. 41 - 43 [ Morelli]: 41 ….Furthermore, the reviewing court may have reference to "amplification" evidence — that is, additional evidence presented atthe voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparingthe ITO, rather than deliberate attempts to mislead the authorizing justice. 42 It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as "a means ofcircumventing a prior authorization requirement" (Araujo, at para. 59). 43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "someminor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police hadthe requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith made" such errors(para 59).

In all cases, the focus is on "the information available to the police at the time of the application" rather than information thatthe police acquired after the original application was made (para. 59). [45] Further, in Araujo, at para. 59 Justice Lebel said: 59 When using amplification courts must strike a balance between two fundamental principles of search and seizure law that come intoa rather unique tension ... The danger in amplification is that it might become a means of circumventing a prior authorizationrequirement.

Since a prior authorization requirement is fundamental to the protection of everyone's privacy interest amplification can goso far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into asham. On the other hand to refuse amplification would put form above substance in situations where the police had the requisitereasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error

in drafting their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds at the time of the application ... in considering the jurisprudence on amplification. [ 46 ] Finally, amplification is not available to augment the review record by providing evidence not known to the police at the time the ITO was sworn nor can it be used to rebut or cure serious flaws in the ITO: Morelli , at paras. 43, 74 ; Quebec (Attorney General) v. Laroche , 2002 SCC 72 , at para. 68 ; R. v.

Ting , 2016 ONCA 57 , at paras. 63-73 ; and Persaud , para. 106 . 3. “Step Six” in Garofoli [ 47 ] This application was litigated based on a photocopy of the redacted ITO. [ 48 ] The applicant did not seek judicial summaries of material redacted by the prosecutor pursuant to “Step Two” of Garofoli . Significantly, the prosecution did not seek to invoke “Step Six” of Garofoli . [ 49 ] The fact that “Step Six” was not invoked placed this reviewing court in a challenging position. As explained by R.G. Juriansz J.A. in concurring reasons in R. v.

Rocha, 2012 ONCA 707 , at paragraphs 48 – 58 [ Rocha ]: 48 This case is not unique. It is not at all uncommon that the question of whether the warrant should have been issued is decided on the basis of a redacted ITO. Deciding whether the warrant should have been issued on the basis of a redacted ITO has several disadvantages. 49 Reviewing a judicial decision without the complete record that was before the decision maker seems inimical to the appellate process.

That the court reviews an issuing justice's decision to authorize a search without looking at all the information before the justice may make the process of review appear somewhat artificial to the ordinary citizen. The ordinary citizen might think there are two standards for assessing a search warrant: one for deciding whether a search warrant should be issued, and another for deciding, after the fact, whether the search warrant should have been issued. 50 The process unfairly reflects on the work of the issuing justice and the police.

The police may include sufficient credible and reliable information in the ITO and the issuing justice may authorize the warrant on the basis of that information, only to have the reviewing court decide, on the basis of an incomplete ITO, the warrant should not have been issued. Without the redactions for context, the reviewing court may even find some of the statements made by the drafting police officer in the ITO to be groundless or even misleading. 51 There is reason to believe that, in many cases, the information excised from the ITO may well be the most pertinent .

An informant who can be easily identified by the accused is more likely to be able to provide detailed and reliable information about the accused's activities. 52 Finally, there is a great waste of resources. The work of the police in gathering information to support a search, drafting a compelling ITO and then executing the search is wasted when the warrant is set aside on the basis of a redacted ITO.

In some cases, a preliminary inquiry or even a jury trial may have taken place before the warrant is set aside on the basis of a redacted ITO. 53 On the other hand, allowing a reviewing court to make a decision to uphold a warrant on the basis of information not made available to the accused in a criminal proceeding is an anathema to the principles governing the criminal justice process. Hence this is a dilemma. 54 Code J., in thoughtful reasons in R. v. Learning , 2010 ONSC 3816 , 258 C.C.C. (3d) 68, at para. 107 , remarked that it is unfortunate that the procedure in "step six" in Garofoli , [1990] 2 S.C.R.

No. 1421, is the only legal mechanism available to resolve the dilemma created by the competing demands of the Crown's obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants. Yet, he observed, the mechanism "is simply not being tried or tested." 55 The procedure based on "step six" in Garofoli permits the Crown to apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with "a judicial

summary of the excised material" to attempt to ensure "the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence": Garofoli, at p. 1461. 56 It is difficult to understand why the Crown does not request the court to employ "step six" of Garofoli more frequentl y. There may be many cases in which the Crown considers the redacted information to be inconsequential, but there must be cases in which the information is significant. In such cases, there can be no advantage to the Crown in defending the issuance of a warrant on less than all the information that supports it. It may be that the Crown believes that any

summary of the redacted information whatsoever will risk betraying the confidential informant's identity. Judges too may be reluctant to prepare judicial summaries of the excised material lest they unwittingly betray the identity of the informant. 57 Perhaps because of such concerns, the Supreme Court of Canada crafted the last element of the "step six" procedure. Where the Crown is dissatisfied with the judicial

summary the judge proposes to provide to the accused, it can decline to rely on the excised

information to support the search warrant. 58 The Crown in this case did not request the trial judge to consider the excised information. And this court has found there wasinsufficient information in the ITO to support the issuance of the warrant to search the respondent's home, without considering all theinformation upon which the warrant was issued in the first place. [Emphasis added] [50] The delicate balancing associated with “Step Six” was further explained by the Ontario Court of Appeal in R. v. Crevier, 2015ONCA 619, at paragraphs 41 – 47 [Crevier]:

(1) The Garofoli step six procedure 41 In Garofoli, in the context of a challenge to a wiretap authorization, Sopinka J. set out a non-exclusive and non-exhaustiveprocedure to be followed when editing the materials in the sealed packet containing the affidavits on which the authorization wasgranted. This procedure has been determined to also apply to search warrants: see e.g. R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346, atpara. 15; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742. Although the six steps were set out earlier in these reasons, I will repeat stepsfive and six here for convenience. They are as follows: 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 muchof the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied thatthe accused 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 isdissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender ofthe wiretap evidence. 42 When applying the sixth step, the objective is a balancing of conflicting interests. On the one hand are the interests of lawenforcement and the protection of informers, and on the other is the accused's right to make full answer and defence: see Garofoli, at p.1458.

Step six allows the Crown to rely on the unredacted ITO in defending the warrant's validity, provided adequate steps aretaken to preserve the accused's right to make full answer and defence.

Step six provides the Crown with another option where itwould otherwise have to concede a s. 8 breach because the warrant's ITO, after redactions are made to protect a confidentialinformer's identity, does not disclose reasonable and probable grounds. * * * 44 Society has a strong interest in effective crime detection, gathering of evidence, and apprehension and conviction of criminals.Search warrants help accomplish these goals. They are tools of efficient and effective law enforcement, and thus enhance publicprotection.

They are "weapon[s] in society's never-ending fight against crime": see Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175, at pp. 180, 184. Therefore, it is important that where the information on which warrantsare obtained is sufficient to support them, these properly-issued warrants survive later review by courts. Where proper procedurewas followed, and the statutory requirements for issuing a warrant were met, courts should not later interfere. 45 The Garofoli hearing is a process that assists in this respect.

Step six of the process allows the court to meaningfully assess the ITOas it was prepared by the affiant and presented to the authorizing judicial officer, without redaction, in order to determine the accused'sclaim that it did not meet the statutory requirement of reasonable and probable grounds for the issuance of a warrant. 46 When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, thereviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision.

As a result, the courtmay be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though itvery well could have issued based on the complete picture that was before the issuing justice. The affiant police officer may havecarefully prepared a detailed and thorough ITO that met the statutory requirements, setting out reasonable and probablegrounds for the search and addressing the three Debot criteria for assessing the reliability of informer tips.

But the search willnonetheless be found to have violated the accused's Charter rights because the reviewing court is prevented from relying on theredacted portions of the ITO. Similarly, the issuing justice may have carefully assessed the sufficiency of the ITO beforeauthorizing the issuance of the warrant and correctly concluded that the ITO was adequate, but will nonetheless be found to haveerred because the reviewing court cannot rely on the redacted portions of the ITO.

See Rocha, at paras. 49-50. 47 Provided the accused's right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, befound inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many searchwarrants and the interest of law enforcement. [Emphasis added] [51] The “Step Six” issue had a significant impact on the ultimate finding in this case. The observations made by the Ontario Courtof Appeal in Rocha and Crevier set out above need not be repeated.

The ultimate decision in this application was driven by the approachto the application record placed before this reviewing court. [52] It would appear that the relevant jurisprudence places the “Step Six” tool solely in the hands of the prosecution: Garofoli, para.

79 ; R. v. Learning 2010 ONSC 3816 , at para. 96 ; and Rocha , at paras. 55 – 58 . As the “Step Six” procedure was not used, the record is strictly limited to the evidence on the application and the redacted ITO without resort to the appendix (or appendices) containing further information about the CHS. [ 53 ] I recognize that this approach does not do justice to the affiant on this case. He presented an ITO that included an additional appendix or appendices to the issuing justice. The affiant is required to protect informant privilege.

It appears that he took reasonable and proper steps to ensure that information that might serve to identify the CHS was identified and protected from disclosure. [ 54 ] I recognize that this approach also does not do justice to the issuing justice in this case. The issuing justice presumably acted judicially in permitting a search based on the ITO and any additional appendix or appendices.

As the reviewing court, I do not have the same record that was placed before the issuing justice. [ 55 ] I wish to emphasize that I have no doubt that the experienced and well-prepared federal prosecutor had reasons for not relying on “Step Six”. It is not this court’s function to inquire into the prosecutor’s approach, question the approach, or attempt to rationalize the approach. Given the prosecutor’s obligation to preserve informant privilege one can speculatively contemplate several scenarios that would cause the prosecutor to refrain from invoking “Step Six”.

As such, where there is a reference to the “Step Six” procedure in this judgment in no way should those references be interpreted as direct criticism of the prosecutor in this case. I have an obligation to clearly explain the decision in this case. That duty requires examination of the fallout associated with the decision not to invoke “Step Six”. [ 56 ] As I will outline further in this judgment, the absence of reliance upon “Step Six” had a two significant and inescapable impacts. First, the redacted ITO did not establish the statutory preconditions for issuance.

This observation is reliant on a speculative value attributed to the CHS. But, if the issuing justice was satisfied by the combination of the affiant’s evidence in the ITO and the CHS it is a least possible that a reviewing court would be satisfied as well. Second, CHS information was not available to augment the evidence of the affiant both contained within the redacted ITO and viva voce on the application. [ 57 ] It is for these reasons that the findings in this case are strictly limited to the particular record and circumstances produced on this application. C.

The s. 8 Charter Arguments [ 58 ] Counsel for the applicant argued that the redacted ITO was deficient on its face. Counsel also submitted that when the evidence on the application was considered, the conclusion was even clearer. This was articulated by way of several sub-facial defects arising from the affiant’s material omissions and material misrepresentations including: (1) the affiant lacked relevant drug investigation experience; (2) there was no objective evidence of drug trafficking; and (3) the CHS information was deficient. 1.

Did the affiant possess relevant drug investigation experience as foundational support for inferences urged upon the issuing justice? [ 59 ] The applicant argues that the affiant did not set out any relevant expertise in drug investigations.

It is submitted that his experience as a police officer was an insufficient foundation in support of the various inferences he urged upon the issuing justice in the ITO. [ 60 ] The affiant outlined the following information in paragraph 1 of the ITO: • That he was presently employed by Durham Regional Police Service • That he was a police constable. • That he was assigned to the West division Target team.

• That during his tenure as a police officer he has been involved in numerous drug investigations. • As a result of those investigations he is familiar with the appearance, odour, packaging, and the sale of illegal drugs. • That he was an involved investigating police officer in this case. [ 61 ] At certain points in the ITO, the affiant asserted inferences of drug trafficking based on his experience. The applicant argues that this was insufficient foundation for those inferences.

a) Inferences in support of identity [ 62 ] The inferences relied upon by the affiant to establish the identity of “TPAN” were not challenged. Those inferences are reasonable and objectively sustainable upon review and do not depend on any drug trafficking investigative experience. [ 63 ] That the CHS information pointed to the applicant in this case was not significantly litigated or challenged in the application.

After paragraph 11 and 12 where he sets out the CHS information and what inferences he drew from corroborative police checks the affiant attested to the following: Affiant Note: I believe the drug trafficker identified by the CHS as “TPAN” is in fact Prathipan VIGNESWARALINGHAM, with a date of birth 1991 October 20. This believe is supported by the fact that Prathipan can be abbreviated to sound like “TPAN” and the information provided in 9(

b) corroborates with the information provided by the CHS that “TPAN’S” phone number was (416) 844- 9333. [ 64 ] The reference to paragraph 9(

b) is evidently a reference to the phone number in paragraph 11(b). To the degree I must use amplification, I would correct this minor error notwithstanding the objection submitted by counsel for the applicant. Even if amplification was not utilized, I am satisfied that the issuing justice could have connected to the correct paragraph as easily as this reviewing court did as the information is otherwise sourced in the ITO. [ 65 ] My finding that inferences related to identity need not rely on the prosecution’s written submission that the CHS “directed” the police to the applicant’s residence. This conclusion is not reasonably apparent from paragraph 12(

a) of the redacted ITO. It was not apparent from the viva voce evidence on the application. In effect, the prosecution submission disclosed a piece of CHS information that was previously redacted.

b) Surveillance: March 4, 2016 [ 66 ] On March 4, 2016 police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 17 of the ITO): • At 1900 HRS a vehicle was observed idling in the driveway. • At 1901 HRS an unknown male got out of the front passenger seat of the vehicle and entered 1 Winterton way. • At 1903 HRS the unknown male returned to the vehicle and the vehicle left. [ 67 ] On March 4, 2016 the affiant was part of a team of officers observing 1 Winterton Way.

He testified that there was no observation of the applicant, no information that he was present at the address, nor any suggestion of any drug trafficking on that day. [ 68 ] During cross-examination the affiant explained that the applicant was in fact present this day and left the residence shortly after 1903HRS. He testified that he had a police note concerning this point but conceded it was not within the ITO and provided no explanation for its absence.

[ 69 ] I will not amplify the record to include this fact. First of all, in response to the Garofoli application question on this exact point (whether the applicant was present on March 4, 2016) the prosecution contested leave and submitted that the review record concerning observations on March 4, 2016 was limited to the redacted ITO. Second, this was a fact available to the affiant prior to preparing the ITO. Third, there was no proffered explanation for the failure to include this piece of information to provide a reviewing court with foundational jurisdiction to consider amplification.

As such the only piece of information received concerning this apparent oversight was that it was information personally known by the affiant at the time he prepared the ITO. In these circumstances, amplification is not available.

c) Surveillance: April 1, 2016 [ 70 ] On April 1, 2016 police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 18 of the ITO): • At 1630 HRS a truck was parked in the driveway • At 1632 HRS the applicant came out of 1 Winterton Way and leaned in to the front passenger door of the truck hunched over the passenger seat • At 1633 HRS the applicant closed the front passenger door • At 1634 HRS the truck left the premises [ 71 ] The affiant noted at this point that the registered owner of the truck was a person “. . . on file as an accused for numerous drug related offences, including a criminal history for unauthorized possession of a firearm . . . .”

d) Surveillance: April 2, 2016 [ 72 ] On April 2, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 19 of the ITO): • At 1530 HRS a Honda Civic vehicle parked in the driveway. • At 1531 HRS an unknown male got out of the vehicle holding a cellphone to his ear and entered the residence. • At 1534 HRS the unknown male returned to his vehicle. • At 15:35 HRS the vehicle left the driveway. • At 1710 HRS the applicant came out of his residence and walked northbound. • The view of the applicant was obstructed however he was observed leaning forward consistent with bending over into a car window. • At 1712 HRS the applicant walked back to his residence. • At 1712 HRS a Toyota Yaris vehicle left the area with two occupants. [ 73 ] After describing these observations in paragraph 19 of the ITO the affiant attested to the following: Affiant Note: Based on my experience as a drug investigator, the types of behaviour exhibited in paragraph 19(

a) through 19(

j) are indicative of drug trafficking. Customers will meet with their drug dealers for short periods of time, limiting their interaction with another.

e) Surveillance: April 8, 2016 [ 74 ] On April 8, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 20 of the ITO): • At 1538HRS a male walked up and let himself into 1 Winterton Way through the front door. • At 1548 HRS the same male left the residence with his hands in his pocket. [ 75 ] The affiant then attested to the following: Affiant Note: I recognize the behavior exhibited in paragraphs 20(

a) and 20(

b) to be indicative of drug trafficking. A drug dealer who has frequent pedestrian and vehicular traffic at their residence will meet customers within their homes to conduct brief transactions out of the public eye. [ 76 ] The police then made further observations on this date described in paragraph 20(

c) to 20(

f) of the ITO: • At 1710 HRS a white sedan arrived and parked in the driveway of 1 Winterton Way. • A male got out of the passenger seat with a black bag and let himself into the front door of the residence. • The sedan drove away. • At 1718 HRS the applicant came out of his residence and walked up the street in the same direction the white sedan went. • At 1719 HRS the applicant came back to his residence. • At 1720 the same white sedan drove way. [ 77 ] The affiant then attested to the following: Affiant Note: Based on my experience as a drug investigator, I recognize the type of behaviour listed in paragraph 20(

d) and 20(

e) as a drug transaction. I am familiar with this type of behaviour as it is common and consistent with drug dealers who wish to draw attention away from their residence from visiting customers. [ 78 ] At 1805 HRS the applicant and the same male who arrived at 1710 HRS came out on the porch. Each male smoked their own cigarette. They also passed a marijuana joint between each other. [ 79 ] The affiant concluded based on this observation that the applicant had access to illegal marijuana as the affiant checked with Health Canada and did not find him registered with a valid medical exception.

f) Surveillance: April 13, 2016 [ 80 ] On April 13, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 21 of the ITO): • At 1515 HRS a white Chevrolet parked in the driveway. • The same male who attended on April 8 (paragraph 20(

c) of the ITO) knocked on the front door and was let into the residence.

• 1534 HRS the male and the applicant went onto the porch of the residence. • The male visitor lit a marijuana joint and smoked it with the applicant. • At 1601 HRS the two individuals left in a vehicle that arrived to pick them up.

g) Surveillance: April 14, 2016 [ 81 ] After describing the circumstances surrounding a traffic stop and arrest of the occupants of a vehicle that left the applicant’s residence in paragraph 22 of the ITO the affiant attested to the following: Affiant Note: Based on my experience as a drug investigator, powdered cocaine can readily and quickly be disposed of. Although cocaine was not located, marihuana and remaining empty drug packaging were located by investigators.

When investigators initiated the traffic stop with a police vehicle outfitted with emergency lights, the tinted BMW continued to drive southbound on Ravenscroft Road for approximately 500 meters. This delay in pulling over is recognized as a tactic to afford time for the occupants to dispose of drugs.

h) Conclusion: Inferences of drug trafficking drawn by the affiant [ 82 ] The entirety of affiant’s expertise or experience is outlined in paragraph 1 of the ITO. I am satisfied that he possessed relevant experience as a police officer to provide evidence concerning the appearance, odour, and packaging of illegal drugs. What was unclear from the ITO is his relevant experience in investigating drug trafficking and the habits of drug traffickers. [ 83 ] The affiant did not provide a detailed outline of his relevant experience as a police officer.

He did not outline relevant courses or training in the area of drug investigations. He did not say how long he had been a police officer. He did not set out any generalized exposure to drug investigations. He did not mention how long he has worked in a specialized area of drug investigation. He did not explain what the “West Division Target Team” was or if it is indeed a specialized unit. [ 84 ] In my respectful view, the issuing justice could have equally rejected or accepted the asserted inferences suggestive of the applicant’s drug trafficking.

To be clear – the affiant was not required to establish status as an expert opinion witness on the subject. But mere conclusory statements as to relevant experience may or may not satisfy an issuing justice: See for example R. v. Ward , 2012 ONCA 660 , at paras. 114-116 . [ 85 ] The narrow question for a reviewing court is whether the issuing justice could have accepted the inferences drawn by the affiant. I am satisfied that it was at least open to the issuing justice to accept the affiant’s conclusory statements asserting relevant drug investigation experience without explicit foundational support.

The issuing justice was entitled to consider the experience, training, and asserted inferences asserted by the affiant: R. v. Ngo, 2011 ONSC 6766 , at para. 35 ; R. v. Andrade , 2014 ONSC 2955 . [ 86 ] There is no evidence that the affiant misled the issuing justice concerning his relevant experience. The evidence on the application makes it clear that in fact the affiant had relevant experience in drug trafficking investigations. That the affiant’s background was not detailed in the ITO, even in a

summary way, is not a minor oversight or error for which amplification is available to cure. [ 87 ] That the issuing justice could rely on the affiant’s assertions concerning drug trafficking is only part of the analysis. The affiant’s asserted inferences must still stand up as supportive of reasonable grounds to believe the applicant was engaged drug trafficking and that evidence would be found in his residence. 2. Was there objective evidence of drug trafficking? [ 88 ] The applicant argues that even if the court finds that the affiant honestly held a subjective belief that the applicant was engaged

in drug trafficking, those subjective beliefs are not sustainable upon (objective) review by this court. [89] I agree. I will analyze the following three issues to explain my reasoning: 1. Whether the affiant’s opinion that the short meetings were consistent with drug trafficking is objectively sustainable in support ofreasonable grounds; 2. Whether traffic stop associated with the arrest of two purported purchasers of illegal drugs from the applicant is probative of drugtrafficking; and, 3. Whether the CHS information documented in the redacted ITO is compelling, credible, and corroborated per R. v. Debot, (SCC), [1989] S.C.J. No 118 (Q.L.)(S.C.C.) [Debot].

a) Short meetings consistent with drug trafficking [90] I find that the affiant subjectively believed that the circumstances he detailed in the ITO concerning short meetings constitutedevidence of trafficking. Some of the subjective views of the affiant are vulnerable upon objective review. There are several reasons forthis finding.

(1) The Surveillance Record [91] First, the surveillance record in this case is limited to a degree. At times in these sorts of drug investigations police surveillancedocuments several short meetings during observed time-frames. The surveillance evidence in this case documented 6 periods ofobservations circumstances over approximately 6 weeks where the affiant believed drug transactions occurred. The police observationstotaled approximately 10 hours overall.

This amounted to direct observations of the applicant approximately nine times during five ofthe six period of observations (March 4, 2016 the applicant was not seen during the timeframe of the short meetings but at some timelater that was not specified in the ITO or during testimony). This surveillance record is placed in the context of a few other meetingswhere the police were able to conclude that the meets were not drug transactions. [92] I am satisfied that the affiant did not attempt to mislead the issuing justice by leaving out so-called “innocent” meetings assubmitted by the applicant.

The crux of this area of submissions from the applicant was that the affiant displayed tunnel vision byproviding a narrow set of meetings at the applicant’s residence that coincided with his subjective view that the applicant was a drugtrafficker. The affiant did not include or reference a body of innocent attendances. The applicant argues this was for the purpose ofpresenting a biased view to the issuing justice. [93] I do not accept the applicant’s argument that the affiant materially omitted certain “innocent meetings” and thereby failed toprovide necessary context to the issuing justice.

I accept the affiant’s explanation provided during his testimony that his guidingmeasure was relevance.

(2) There were no observed drug transactions [94] In my view, the fact that no actual hand-to-hand drug transactions were observed by any police officers is a relevant factor whenassessing the overall strength of the reasonable grounds presented. [95] While I acknowledge that the police need not actually observe the commission of the crime (See Rocha, at para. 22.), it is stillsignificant that the police never observed any hand-to-hand transactions.

[ 96 ] The affiant acknowledged this fact yet still maintained that he possessed a basis for believing that drugs would be found within the residence given his generalized experience ( i.e . not specific to the applicant) that drug dealers maintain their drugs at an accessible nearby location.

(3) The police did not observe the applicant in possession of illegal drugs [ 97 ] The police did not observe the applicant in possession of illegal drugs such that it was reasonable to suggest that marijuana would be found within his residence. I acknowledge that police observed the applicant share a marijuana cigarette on his porch on one occasion. It is also true that the police observed another person share a marijuana cigarette with the applicant on a second occasion.

The source of the marijuana is not apparent from the redacted ITO. [ 98 ] I reject the prosecution submission that simple possession of an admittedly illegal marijuana joint provides grounds to search a residence in the circumstances of this case. I concede that there might be a factual circumstance where this fact could convey grounds or augment other grounds.

But, strictly considering the record on this application, I find it objectively unreasonable to conclude that because someone smokes a marijuana joint on their front porch (with no information as to sourcing of the marijuana) there are reasonable grounds to believe that they are in possession of further quantities of marijuana within their residence or that they are trafficking in marijuana. [ 99 ] It might very well be that the affiant’s conclusion in this regard was augmented by CHS information placed before the issuing justice. I am required to make my finding on the record placed before me.

I do not believe that an issuing justice, acting judicially, could have found this expressed basis sufficient to sustain reasonable grounds to believe that marijuana was inside the residence.

b) The traffic stop and “takedown” on April 14, 2016 [ 100 ] A significant part of the ITO concerns the circumstances of the arrest of two persons who left the applicant’s residence (See paragraph 22 of the ITO). On April 14, 2016 the police observed the attendance of a vehicle to 1 Winterton Way with a male driver and female passenger. The applicant admitted the male driver to the residence. The male driver then exited the residence and appeared to have something in his coat pocket. He appeared to retrieve something from the vehicle and return to the residence.

Minutes later the male returned to the driver’s seat of the vehicle. The police (reasonably in my view) thought that this could be a short meet consistent with a drug-related transition. A few minutes later the vehicle was stopped and the occupants arrested for possession of a controlled substance. [ 101 ] The affiant informed the issuing justice that search incidental to arrest revealed “two marijuana roaches” in the vehicle and the female passenger had 6 empty “baggies” commonly used in the sale of powdered cocaine.

The affiant asserted, based on his experience as a drug investigator, that powdered cocaine was can be quickly disposed of and that the vehicle when engaged by the police continued to drive for 500 meters before stopping.

This was described as a tactic to permit the occupants to dispose of drugs. [ 102 ] As the reviewing court I am obliged to form conclusions based strictly on the record before me, but I am not required to ignore context or my relevant experience as a trial judge addressing criminal cases in Durham on a daily basis or my experience as an issuing justice reviewing similar applications. [ 103 ] Put into context, in these warrant applications it is often the case that the police will arrest a potential purchaser leaving the premises of an alleged drug trafficker. This is sensible.

If the persons in fact purchased drugs from the target of the investigation or from the target address this is excellent potential corroboration of other reasonable grounds gleaned from the investigation. Frankly, the simple fact that a potential purchaser was found in possession of drugs shortly after leaving the target residence is at times probative on its own. Other times the police obtain a statement from the confirmed purchaser.

In such situations reasonable grounds are augmented by this occurrence. [ 104 ] In this case, the affiant conveyed to the issuing justice his belief that the occupants of the vehicle had completed a drug transaction with the applicant just prior to the traffic stop. He also conveyed his opinion that the empty plastic baggies and marijuana roaches were connected to the applicant’s drug trafficking. This was important information and I am convinced that an issuing justice would have relied significantly on this area of the ITO.

[ 105 ] I find that some important information was omitted from the ITO. I also find that other material information was presented in a misleading fashion. [ 106 ] The affiant was one of the officers involved in the traffic stop of this vehicle.

He was privy to material information that he did not include in the ITO including the following: • The affiant did not note in his police notes or independently recall an odour of marijuana emanating from the vehicle or anyone after the traffic stop. • The marijuana “roaches” were in the ashtray. • The affiant did not see any behaviour associated with the consumption of marijuana or cocaine during the short time frame between leaving 1 Winterton Way and the traffic stop. • The affiant did not see any behaviour associated with the disposal of marijuana or cocaine during the short time-frame between leaving 1 Winterton Way and the traffic stop. • The affiant was aware that the operator of the vehicle was a prohibited driver for life and, significantly, his personal experience as a police officer supported that fact as a possible or available explanation for the delay in the vehicle coming to a stop. • There were no admissions gleaned from the occupants of the vehicle that they had purchased drugs from the applicant or at the applicant’s residence. • The “six empty powdered cocaine baggies” [paragraph 45 of the ITO] were located in the bra of the female passenger of the vehicle. • The six empty plastic baggies did not even contain residue or whitish powder associated with the affiant’s belief that they had previously contained powdered cocaine. [ 107 ] An affiant is not required to relate every detail in an ITO.

A reviewing court must temper the benefit of hindsight and refrain from focusing on the minutiae . But these omissions were important. [ 108 ] A reviewing court must emphasize and underline the responsibility of the affiant on an ex parte application. The affiant must include all material facts and is not permitted to assemble only certain selected facts in order to present a selective view. [ 109 ] The affiant testified on the application that it was possible that the marijuana roaches were referable to the applicant and his residence as it was possible that they were purchased from the applicant.

Further, it was likely that the roaches emanated from the applicant because of the CHS information received that he was trafficking in drugs and that this trafficking was not just limited to cocaine: Even accepting that the affiant believed this, [2] the record before me does not reasonably or objectively support that belief. [ 110 ] First of all, there is little chance that the two occupants of the vehicle consumed two marijuana cigarettes during the minutes prior to the traffic stop such that they were dormant roaches by the time of police interdiction.

If the police believed that the roaches were referable to the applicant, their actions after execution of the search warrant does not support this because they never seized the roaches and sent them to Health Canada for analysis. Second, I was not assisted by the testimony of the affiant concerning the presence or absence of an odour of marijuana associated with the vehicle or its occupants when it was stopped. The affiant did not have an independent recollection. He consulted his notes for many minutes. He did not concede that had they been an odour he would have

noted that important circumstance. Finally, it seems more probable than not that there would be an odour of marijuana present during the traffic stop if the occupants of the vehicle were truly consuming marijuana so shortly after having purchased marijuana from the applicant as the affiant asserted.

In this area of questioning the affiant was somewhat evasive and would not acknowledge that it was unlikely that the occupants consumed marijuana roaches during the short duration of the drive. [ 111 ] The affiant conveyed to the issuing justice that there were “6 empty powdered cocaine baggies” found in the vehicle and that these (and the marijuana roaches) were the product of a drug transaction with the applicant at his residence. Even if the affiant believed this, this conclusion is not reasonably or objectively supportable. The important detail is that the empty baggies were found in the passenger’s bra.

It is unlikely that the passenger would have emptied 6 bags of powdered cocaine contents and then secured the pristinely empty bags in her bra within a few minutes of leaving the residence. In the 500 meters it took to stop upon police interdiction there was no evidence of the occupants disposing of these drugs. There was no cocaine residue in the car. It also seems unlikely that the passenger disposed of a large volume of cocaine by eating the product.

If the passenger was interested in disposing of drugs one would have expected her to throw the whole bags out the window rather than meticulously dispose of the contents and preserve the baggies securing them in her bra. The affiant reasonably agreed with all of these suggestions and more during cross-examination.

He nevertheless maintained confidence in these grounds. [ 112 ] Neither party in the traffic stop gave a statement or made any admissions related to the applicant. [ 113 ] I find that when I consider this fuller context with the additional facts, the asserted significance of the traffic stop is significantly weakened: Morelli , at para. 60 ; Araujo , at para 57 . As such, the affiant’s conclusion that “[a]lthough cocaine was not located, marihuana and remaining drug packaging were located . . . .” in the affiant note after paragraph 22(

i) of the ITO is materially misleading. [ 114 ] Furthermore, in paragraph 45 of the ITO the affiant concluded that: Investigators have arrested a male and female after an illegal drug transaction with VIGNESWARALINGAM. They were found to be in possession of marihuana roaches and six empty powdered cocaine baggies. [ 115 ] This subjectively held view is misleading and not objectively sustainable. [ 116 ] The stark conclusion is that the police sought to arrest a potential purchaser of drugs upon his egress from the applicant’s residence.

This is understandable because a seizure of drugs or an admission from an occupant in the vehicle could support grounds for a search warrant on the residence. Specifically this could support an assertion that there were illegal drugs currently in the residence. [ 117 ] I make this finding keenly aware that the officer properly resisted providing the details of CHS information during his viva voce evidence but at times cited the CHS generally as the sourcing of important conclusions.

Again, I must emphasize that whatever potential connection drawn by the affiant between the CHS information and the applicant’s drug trafficking is not available to me as the reviewing court. [ 118 ] The simple fact is no drugs were seized from the occupants of the vehicle. There were no admissions made by the occupants of the vehicle. There were no statements taken.

It was unreasonable to conclude that 6 small plastic bags and two marijuana roaches implicated the applicant in drug trafficking. [ 119 ] Frankly, whether I excise the misleading information contained in paragraph 22 or merely reconsider the matter on the record that should have been provided to the issuing justice, the traffic stop amounted to (at best) another suspicious short meet. In fact, this short meet is worth less than some of the other short meets because in stopping the purported purchasers it was reasonably clear that they had not recently purchased illegal drugs from the applicant. 3.

Was the Confidential Human Source information compelling, credible, and corroborated?

[120] The Ontario Court of Appeal recently restated the proper approach to the analysis of CHS information in R. v. Shivrattan, 2017ONCA 23, at paras. 27-28: 27 The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of thecircumstances as set out in the ITO and as amplified by any additional material placed before him or her.

When, as in this case, theinformation to support the warrant comes almost entirely from a CI, the totality of the circumstances inquiry focuses on three questions.Does the material before the reviewing judge demonstrate that the CI's information was compelling? Does the material demonstrate thatthe CI was credible? And does the material demonstrate that the CI's information was corroborated by a reliable independent source?See R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, at p. 1168; Hosie, at para. 12; and R. v.

Rocha, 2012 ONCA 707, 112O.R. (3d) 742, at paras. 16-18. 28 The first question addresses the quality of the CI's information. For example, did he purport to have first-hand knowledge of eventsor was he reporting what he had been told by others? The second question examines the CI's credibility. For example, does he have along record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third questionlooks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurateinformation.

The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued inthe totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI'scredibility: see Crevier, at paras. 107-108. [121] In Crevier, at paragraph 86, the Ontario Court of Appeal also set out an illustrative list of information relevant to the Debotanalysis. [122] The redacted ITO in this case contains a single paragraph (#12) concerning the CHS.

While I imagine that further informationmight have been provided by the affiant in one or more appendices I do not have that information as part of the record before me and Imay not speculate as to what sort of information might be contained in the appendix or appendices. [123] The redacted ITO plainly fails to address the traditional Debot inquiry concerning whether the CHS information was compelling,whether the CHS is credible, and whether the CHS was corroborated. I find that it is impossible to conduct the Debot analysis withoutaccess to the redacted CHS record: (See R. v.

Tsapoitis, 2017 ONCJ 70 where Justice P. West also reached this conclusion at paragraphs29 – 31, 48). [124] The police made efforts to corroborate the information provided by the CHS by confirming the identity of the applicant, hisaddress, and his phone number. The police also conducted surveillance with a view to corroborating the information that the applicantwas trafficking in illegal drugs. Given the lack of information in the redacted ITO I find that the CHS information in this case must beviewed as akin to an untested anonymous tipster.

That the CHS provided a nickname, the address, and the phone number associated tothe applicant does not meaningfully demonstrate the applicant’s involvement in criminal activities. This was information available to alarge subset of individuals. Anyone reasonably familiar with the applicant would know this information. While there is no need toconfirm the very criminal conduct described by the CHS, corroboration of commonplace information is not sufficient: R. v. Dhillon,2016 ONCA 308 at para. 41; R. v.

Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.). [125] The weak CHS record in the redacted ITO was not corroborated by the police surveillance sufficient to address the Debotcriteria. 4. Was the recital of the applicant’s criminal antecedents misleading? [126] The affiant deposed the following in paragraph 14 of the ITO: I conducted a criminal background check on VIGNESWARALINGHAM.

VIGESWARALINGHAM was on file with a criminal historyincluding, but not limited to drug trafficking and drug possession offences. [127] The affiant testified on the application that the phrase “criminal history” meant that the applicant had involvement with the policeas well as possibly charges that the applicant had faced. He testified that had there been a criminal conviction it would have beenspecified. The affiant did not define the term “criminal history” in the ITO.

[ 128 ] The truth of the matter is that the applicant does not have a criminal record for drug trafficking and drug possession offences. He has one entry for a minor administration of justice offence. [ 129 ] The affiant testified that he ran a police CPIC check on the applicant prior to preparing his ITO. The applicant had been investigated for drug-related matters but not convicted. It is clear that the affiant did not have a good understanding of these allegations.

He did not know the year of the charges, did not consult with the responsible police service to gain any further background (e.g. to determine if the applicant’s practices and procedures were similar), or clarify why the applicant was not convicted. The affiant testified that he did not include the applicant’s actual CPIC record or the police occurrences relevant to the “criminal history” as an appendix because it was not his normal practice nor was he trained in this fashion. [ 130 ] I find that the use of the phrase “criminal history” was vague and misleading.

It conflated the concept of being charged with a criminal offence with being convicted of a criminal offence. The distinctions relied upon by the affiant during his testimony were meaningless. The affiant was aware of the difference between a “CPIC record”, “local record” (i.e. local record of the Durham Regional Police Service), and the CPIC record capture of outstanding charges. He understood the distinction between convictions and withdrawn matters. He did not distinguish between “criminal history” and “criminal convictions”.

Because of his failure to be specific it is objectively reasonable to conclude that the issuing justice would have been misled into thinking that the applicant had a relevant criminal history. [ 131 ] If there is a circumstance where a target’s “criminal history” as defined by the affiant is probative to reasonable grounds, the relevance should be clearly articulated for the issuing justice.

For example, if some method or practice used by the applicant in a prior investigation is relevant to reasonable grounds this should be explicitly set out for the issuing justice. [ 132 ] The confusion inherent in the use of loose language such as “criminal history” was not saved by the affiant’s testimony that had there been relevant criminal convictions he would have explicitly said so. While it is not strictly necessary to file the actual CPIC documents or other related documents in an ITO, the failure to do so in this case is compounded by the use of the vague phrase “criminal history”.

Whether or not the documentation is attached to the ITO as an appendix, the affiant is required to be clear and accurate. [ 133 ] The comments of the Ontario Court of Appeal in R. v. Paryniuk, 2017 ONCA 87 , at paragraph 78 , appropriately address this failure: 78 The affiant’s failure to plainly say that Paryniuk had never been convicted of a criminal offence is a serious deficiency.

That said, the descriptives “Involved” and “CHARGED” were clearly displayed, as well the obvious lack of reference to “CONVICTED” or “convictions” could scarcely have gone unnoticed. [ 134 ] An ex parte application requires a more fulsome commitment to inclusion and specificity.

In Paryniuk , part of the analysis revealed that certain E-COPS documents had in fact been included in the ITO so any lack of clarity on the part of the affiant was addressed by the inclusion of such information. [ 135 ] This misleading information is excised on review. [ 136 ] I am also excising other areas of the ITO where this vague terminology was used in the affiant notes after paragraphs 18 and 22. 5. Execution of the Search Warrant [ 137 ] The applicant testified that he was assaulted during the execution of the search warrant.

He was told to place himself against a wall and an unknown police officer pressed his head such that his cheek was placed against the window shutters. The applicant also complains that the executing police officers used a dynamic entry and were dressed in balaclava such that their identity was concealed. Finally, he testified that the police were not readily identifiable as such in that there were no markings on them suggestive of police. [ 138 ] On these issues the applicant, two tactical police officers, and the officer in charge of the case (affiant) testified. The police

witnesses are not entitled to any presumption of credibility in evaluating these allegations. [ 139 ] The applicant has failed to establish these allegations on a balance of probabilities.

a) Allegation of Assault [ 140 ] The tactical officers were relatively detached witnesses unconnected to the drug trafficking investigation with no prior involvement concerning the applicant. [ 141 ] They were detailed for a tactical entry and they conducted their task. [ 142 ] Two tactical officers testified that the applicant was detained and secured by arrest on his bed in his bedroom. Neither officer endorsed a construction of the facts that included the applicant being placed anywhere near the window blinds. Neither officer testified that the applicant’s cheek was pressed up against a window blind.

There is no independent corroboration of the applicant’s assertion (e.g. a photograph of a resulting bruise). There were no other witnesses to the events in his bedroom. [ 143 ] In considering the factual dispute between the officers and the applicant there is no clear explanation. I prefer the evidence of the tactical officers as it was more detailed and augmented by the availability of police notes. I accept the evidence of the single detaining tactical officer that the applicant was secured on the bed and that he was not braced against a wall or pressed up against a wall.

The officers were able to provide some detail concerning the location and movements of the applicant under their control. That their respective versions were not identical is of no concern in this case. [ 144 ] Even if I were to accept the evi

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