HER MAJESTY THE QUEEN — v. —, 2022 ONCJ 300

CITATION : R. v. Matthew , 2022 ONCJ 300 DATE : May 30, 2022 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JAYRON MATTHEW Before Justice John North Reasons for Judgment released on May 30, 2022 REASONS FOR RULING -

SECTION 8 OF THE CHARTER A. Pancer............................................................... counsel for the Attorney General of Ontario A. Elbaz………………………………...counsel for the Public Prosecution Service of Canada M. Mirza........................................................................................... counsel for Jayron Matthew Table of Contents INTRODUCTION .. 2 OVERVIEW OF THE INVESTIGATION .. 3 THE “STEP SIX” APPLICATION .. 4 THE INFORMATION TO OBTAIN .. 4 (

a) Appendix A .. 4 (

b) Appendix B .. 5 (

c) Appendix C .. 5 (

d) Appendix D .. 8 LEGAL PRINCIPLES . 11

(

a) The Requirements for Issuing a Search Warrant 11 (

b) Reviewing the Validity of a Search Warrant 11 (

c) Sub-facial Challenge to a Search Warrant 12 (

d) Duty to Make Full, Frank and Fair Disclosure . 12 OFFICER DURAN’S EVIDENCE .. 13 (

a) October 27, 2018 Observations . 13 (

b) The Description of Mr. Matthew’s Height and Weight in the “Person of Interest” Package 17 (

c) Honda – Ontario Licence Plate CFNL 349 . 17 (

d) Officer Duran’s Understanding of his Obligations as Affiant and Whether He Deliberately Misled the Issuing Justice . 19 (

e) The Documents Relied on by Officer Duran in Preparing the ITO .. 22 (f) 2531 Eglinton Ave West/2535 Eglinton Avenue West 23 PROPOSED EXCISIONS AND AMPLIFICATIONS . 23 THE “3 C’s” CRITERIA FROM DEBOT .. 34 (

a) Was the Information Compelling? . 34 (

b) Was the C.I. Credible? . 35 (

c) Was the C.I.’s Information Corroborated? . 37 (

d) Conclusion on the Debot Factors . 38 RESIDUAL DISCRETION TO SET ASIDE THE SEARCH WARRANTS . 39 NORTH J.: INTRODUCTION 1 . On October 30, 2018, the Applicant, Jayron Matthew, was charged with offences under the Criminal Code and the Controlled Drugs and Substances Act ( CDSA ). That day, police officers with the Toronto Police Service (TPS) executed search warrants on an apartment and a car. They found a loaded handgun and controlled substances inside the car. Ammunition was located by police inside the apartment. 2 .

The defence challenged the admissibility of the evidence seized during the execution of the search warrants. The defence argued that the search warrants were invalid, that Mr. Matthew’s rights under s. 8 of the Charter had been violated and that the evidence should be excluded under s. 24(2).

The defence argued that the amplified record, “as proposed by the defence leads to the conclusion that there’s no reasonable grounds to believe that an offence has been committed nor the items sought would be found at the place.” In support of its position, the defence advanced a number of arguments, including the following: • The affiant of the information to obtain (ITO), “failed to meet his constitutional obligations in relation to virtually every aspect of this case.” • The affiant did not fulfill his obligation to be full, fair and frank in setting out material facts in the ITO. • The affiant fabricated surveillance that he claims he conducted on October 27, 2018, and relied on this fabricated surveillance in the ITO. • The affiant used “semantic trickery to make it appear that the [confidential informant’s] tip was credible, compelling and corroborated.” • a sub-facial analysis of the investigation reveals that the affiant’s conduct undermines the reliability of the entire ITO. 3 .

Defence counsel argued that even if I were to find, after the amplification and excision process was completed, there remained sufficient reliable evidence on the basis of which the search warrants could have issued, the police conduct was so subversive of the pre- authorization process that I should exercise my residual discretion to set aside the warrants. 4 . The Crown argued that the search warrants were properly issued and that there had been no violation of Mr. Matthew’s s. 8 rights.

5 . I previously dismissed the s. 8 application, with reasons to follow. These are my reasons. 6 . I have concluded that, after excision and amplification, there was reliable evidence upon which the search warrants could have been issued. I have also concluded that there is no basis for the Court to exercise its residual discretion to set aside the search warrants. 7 . At the outset, I note that over ten pages of these reasons, under the heading “Proposed Excisions and Amplifications”, deal with the very specific excision and amplification arguments that were made by counsel. OVERVIEW OF THE INVESTIGATION 8 .

After receiving information from a confidential informant (C.I.), members of the Guns and Gangs Task Force of the TPS commenced an investigation, which ultimately resulted in Mr. Matthew’s arrest. On October 29, 2018, police obtained search warrants for an apartment and a motor vehicle. Officer Adrian Duran was the affiant of the ITO.

He stated in the ITO that there were reasonable grounds to believe that Jayron Matthew unlawfully possessed a firearm contrary to s. 91 of the Criminal Code and that evidence of this offence would be found in a basement apartment located at 2535 Eglinton Avenue West, Toronto and a 2014 Honda Civic with an Ontario licence plate CFNL 349 (the “Honda Civic”). 9 . On October 30, 2018, Mr. Matthew was arrested in the Honda Civic, after he had parked the car behind the basement apartment at 2535 Eglinton Avenue West. Immediately after arresting Mr.

Matthew, police officers executed the search warrants on the basement apartment and the Honda Civic. Police officers found ammunition and identification in Mr. Matthew’s name inside the apartment. Inside the Honda Civic, police officers seized 35.79 grams of fentanyl, 28.65 grams of heroin and a loaded Taurus 9 mm semi-automatic handgun. [1] THE “STEP SIX” APPLICATION 10 . As previously stated, the search warrants in this case were based, in part, on information provided by the C.I. Crown counsel provided defence counsel with a redacted copy of the ITO.

The redactions were made to protect the identity of the C.I. 11 . Crown counsel conceded that the redacted ITO did not contain sufficient grounds to justify the issuance of the search warrants. The Crown brought a “step six” application to have the Court consider the redacted portions of the ITO: R. v. Crevier , 2015 ONCA 619 ; R. v. Brown , 2021 ONCA 119 , at paras. 35-39 . 12 . Crown counsel provided the Court with an unredacted copy of the ITO, which was made a sealed exhibit on the application. Crown counsel prepared a draft judicial

summary of the redacted portions of the ITO. I had a number of questions for Crown counsel about the need for some of the redactions. I suggested that additional information could be provided to the defence without compromising C.I. privilege. Crown counsel and I communicated in writing during this process. These written communications were made sealed exhibits. Crown counsel agreed that additional information could be provided to the defence. Defence counsel also brought a disclosure application. After that, additional information was disclosed to the defence. 13 .

I granted leave to the defence to cross-examine Officer Duran in a number of areas. Following the cross-examination of Officer Duran, defence counsel conceded that the defence had sufficient information to meaningfully challenge the search warrants under the Step Six procedure. 14 . To fully explain my conclusions, it will be necessary to refer to portions of the unredacted ITO. I will do so in an endnote to the reasons. An unredacted version of these reasons (including the endnote) will be sealed and placed in the court file. Crown counsel will also receive a copy of the unredacted reasons: R. v.

Woo , 2017 ONSC 7655 , at para. 14 . THE INFORMATION TO OBTAIN 15 . In this section, I will review the contents of the redacted ITO. As part of this review, I will refer to information from the judicial

summary that summarizes redacted material. 16 . The ITO contains four appendixes. (

a) Appendix A 17 . In Appendix A, Officer Duran lists the items to be searched for in the basement apartment at 2535 Eglinton Avenue West and in the Honda Civic. This list includes a firearm and ammunition. (

b) Appendix B

18 . Appendix B sets out the offence for which Mr. Matthew was under investigation: unlawfully possessing a firearm contrary to s. 91 of the Criminal Code . (

c) Appendix C 19 . Appendix C sets out the grounds for belief. Overview 20 . Officer Duran states that information has been received that a male known as [ Judicial

summary : name/nickname that the confidential source knows Jayron Matthew as] is in possession of a firearm and that the investigation identified [redacted] to be Jayron Matthew with a date of birth of August 11, 1993. 21 . Officer Duran also states that “it is believed that Jayron Matthew is currently residing at 2535 Eglinton Avenue West, basement apartment, City of Toronto. The 2014 Honda Civic with Ontario licence number CFNL 349 is registered to Jayron Matthew.” Database Checks 22 . Information about Mr. Matthew’s criminal record and involvement in previous investigations is included in Appendix C. 23 . Mr.

Matthew’s two-page criminal record is reproduced in Appendix C. Mr. Matthew’s most recent convictions occurred in 2015, when he was convicted of trafficking a controlled substance and possession of a

Schedule I substance for the purpose of trafficking. As a result of the 2015 convictions, Mr. Matthew was subject to a weapons prohibition order pursuant to s. 109 of the Criminal Code . 24 . Officer Duran includes information about Mr. Matthew from the Canadian Police Information Centre (CPIC). According to CPIC records, Jayron Matthew is 5’10” and 166 pounds. He was born on 1993-08-11. He has a tattoo on his right forearm. He has black hair and brown eyes. 25 . Officer Duran states that Ministry of Transportation (MTO) records indicate that Mr.

Matthew’s “mailing address” is C-2535 Eglinton Avenue West, Toronto. The MTO records describe Mr. Matthew as 5’8”. MTO records indicated that Mr. Matthew had two vehicles registered in his name. Officer Duran states that, according to MTO records, the first vehicle was a 2014 Honda Civic with Ontario licence plate CFNL 349. The second vehicle was a 1994 Nissan, which did not have a registered licence plate. Surveillance 26 . At pages 10-11 of Appendix C, Officer Duran summarizes the surveillance conducted by TPS officers on October 26 th , 27 th and 28 th , 2018. 27 .

Officer Duran states that on October 26 th. members of the Guns and Gangs Task Force attended 2535 Eglinton Avenue West and observed the following: • At approximately 10:00 p.m., a Honda Civic with Ontario licence plate CFNL 349 was parked in the rear of the address. Officer Duran states that this vehicle “had a dark-coloured plate guard on the rear plate.” • Mr. Matthew was not observed on this date. 28 . Officer Duran states that on October 27 th “a member of the Guns and Gang Task Force attended 2535 Eglinton Avenue West and observed the 2014 Honda Civic with Ontario licence number CFNL 349.” Mr.

Matthew was not observed that day. 29 . Officer Duran states that on October 28 th members of the Guns and Gangs Task Force made the following observations: • At approximately 3:50 p.m., a Honda Civic with Ontario licence plate CFNL 349 pulled into the lane leading up to 2535 Eglinton Avenue West. The car parked to the rear of 2535 Eglinton Avenue West. Mr. Matthew was “observed exiting the front passenger side of the vehicle.” • Mr. Matthew was observed “going to and from the vehicle and the driveway of 2535 Eglinton Avenue West and entering the basement unit of the address.” • At approximately 6:56 p.m., Mr.

Matthew was observed entering the Honda Civic. Police followed the Honda Civic to an Esso gas station in Mississauga. • At approximately 7:37 p.m., Mr. Matthew was observed leaving the Esso gas station. He was followed to another Esso gas station in Mississauga. • At 7:50 p.m., Mr. Matthew was observed leaving the Esso gas station. He was followed to 939B Lakeshore Boulevard West. At 8:08 p.m., Mr. Matthew was observed “entering the door of 939C Lakeshore Boulevard West.” • At 8:21 p.m., Mr. Matthew was observed exiting 939C Lakeshore Boulevard West. He was followed to “Shore Breeze Drive in

the area of Parklawn Road and Lakeshore Boulevard West, Toronto.” • At approximately 8:52 p.m., Mr. Matthew was followed back to the area of 2535 Eglinton Avenue West. After that, Mr. Matthew was followed to the area of Rogers Road and Rosethorn Avenue. Police followed him drive back to the rear of 2535 Eglinton Avenue West, and observed him entering the rear basement of this address. • Mr. Matthew was later observed leaving 2535 Eglinton Avenue West. Mr. Matthew drove to the area of Old Weston Road and Rogers Road.

He was followed to the area of Davenport Road and Uxbridge Avenue where he parked on Uxbridge Avenue on the west side “for approximately 35 minutes.” • At approximately 11:40 p.m., police followed Mr. Matthew to 720 Tretheway Drive, “where he parked his vehicle in the underground parking lot close to the entrance of 710 Tretheway Drive.” Police discontinued surveillance at 1:30 a.m. “Grounds to Believe an Offence Has Been Committed” 30 . Officer Duran states that Mr. Matthew is not licenced to possess a firearm and is subject to “an indefinite lifetime firearms prohibition.” 31 .

Officer Duran states that “information has been received from a proven confidential source in relation to Jayron Matthew, which I believe to be credible and compelling. As such, I believe the source to be telling the truth.” 32 . Officer Duran states that “relying on the source information provided in Appendix D, I believe Jayron Matthew is in possession of an illegal firearm, committing an offence under the Criminal Code under

section 91 .” “Reasons to Believe that the Evidence Sought will be at the Search Location” 33 . Officer Duran summarizes the grounds to believe that evidence will be found at 2535 Eglinton Avenue West and in the 2014 Honda Civic. In this part of the ITO, Officer Duran includes the following information: • Information has been received that Jayron Matthew is in possession of a firearm. • The vehicle registered to Mr. Matthew has been observed parked in the rear of 2535 Eglinton Avenue West on three occasions. • According to police and MTO records, Mr.

Matthew’s address is 2535 Eglinton Avenue West, Unit C, Toronto. • Mr. Matthew was observed by police on two occasions (as recently as October 28 th .) entering the rear basement unit at 2535 Eglinton Avenue West. • Mr. Matthew has been observed driving (as recently as October 28 th .) a 2014 Honda Civic with Ontario licence plate CFNL 349. This vehicle is registered in Mr. Matthew’s name. • Officer Duran states that he believes that the information provided by the CI (as set out in Appendix

D) to be both compelling and credible. Officer Duran states that some of this information has been corroborated through “various sources and or investigative checks.” • Officer Duran states that, based on his experience and information provided by other officers involved in these types of investigations, that firearms are “typically kept close to those who possess them, and they seek to maintain control over them at all time. This includes the storage of the firearm in areas directly controlled by the individual, such as homes and vehicles.” (

d) Appendix D 34 . Appendix D contains a

summary of the information provided by the C.I. and background information about the C.I. Most of the information contained in Appendix D regarding the C.I. and the information they provided to the police was redacted from the ITO that was disclosed to the defence. As previously stated, the redacted information was summarized in the judicial

summary. 35 . The ITO discloses when the C.I. provided information to the police. The name of the C.I.’s police “handler” is also mentioned. 36 . Appendix D discloses whether or not the C.I. is facing any charges or has a criminal record. If the C.I. had a criminal record, it was included in Appendix D. 37 . The C.I.’s motivation for providing the information to the police is disclosed in Appendix D. 38 . The C.I. was cautioned that knowingly providing false information to the police may constitute an offence.

According to Officer Duran, the C.I. was told that “he/she will only receive a benefit in relation to information provided which proves to be accurate.” 39 . Officer Duran states in Appendix D that the C.I. “is a proven source and has provided information in the past that was proven to be reliable and accurate.” Officer Duran also states that the C.I. is “a registered Confidential Source of the Toronto Police Service. The Confidential Source has been assigned a Source number.” 40 . Officer Duran states that the C.I. “is not known to have provided misleading information in the past.” 41 .

Officer Duran summarizes what he was told by the C.I. handler about information that the C.I. had previously provided about

an unrelated investigation or investigations, what was seized by police as a result of the C.I.’s information and the date or dates of the seizure or seizures. 42 . In paragraphs 10 and 11 of Appendix D, Officer Duran summarizes the information that the C.I. provided to the C.I. handler about the matter before the court. 43 . In paragraph 10, Officer Duran states that the C.I. told the C.I. handler that Mr. Matthew was “currently driving a newer model Honda black in colour possibly 2013 model.” [Emphasis added.] 44 . The judicial

summary of paragraphs 10 and 11 of Appendix D is set out below” [2] Paragraph 10 Discloses the date and month in 2018 when the information was provided (the time of year when the information was provided was within a six-month period prior to the drafting of this warrant). Note: at paragraph 14 the affiant advises that the source is providing first-hand knowledge of the information provided. a. Discloses specific details about Jayron Matthew’s criminal activities in relation to the firearm and controlled substances. b.

Discloses specific detailed information about Jayron Matthew’s criminal activities in relation to controlled substances and specific information about Jayron Matthew. c. Discloses specific detailed information in relation to Jayron Matthew. Discloses specific detailed information about the criminal activities of someone who is not Jayron Matthew. Discloses specific detailed information about Jayron Matthew and another person. d. Discloses specific detailed information about Jayron Matthew’s criminal activities in relation to controlled substances and the criminal activities of another person.

Discloses further specific detailed information about Jayron Matthew’s criminal activities in relation to controlled substances. e. Discloses specific detailed information about Jayron Matthew’s criminal activities in relation to controlled substances. f. Discloses detailed specific information about Jayron Matthew’s criminal activities in relation to firearm(s). Provides specific detailed information about Jayron Matthew’s criminal activities in relation to firearm(s). Discloses specific detailed information about Jayron Matthew. g.

Discloses specific detailed information about Jayron Matthew’s criminal activities in relation to both controlled substances and firearm(s). Some of that information disclosed is first-hand. h. Discloses specific detailed information about Jayron Matthew. Discloses specific detailed information about the criminal activities of another person. Discloses recent specific detailed information about Jayron Matthew’s criminal activities. Some of that information disclosed is first-hand. i. Discloses detailed information about Jayron Matthew. j. Discloses detailed information about Jayron Matthew.

Discloses a belief the source has about Jayron Matthew’s criminal activities in relation to both controlled substances and firearms(s). k. Discloses first-hand specific detailed information about Jayron Matthew. Paragraph 11 Discloses the name of the handler and first-hand specific detailed information about Jayron Matthew’s criminal activities specifically in relation to controlled substances and firearms(s). 45 .

In Appendix D, Officer Duran describes three areas of the C.I.’s information that the police were able to corroborate: • Officer Duran states that he has “corroborated that Jayron Matthew is associated to 2535 Eglinton Avenue West through investigative checks and physical surveillance of Matthew.” Officer Duran states he confirmed that the C.I. handler “meant 2535 Eglinton Avenue West and not 2531 Eglinton Avenue West as originally reported to the affiant.” • MTO records and surveillance of Mr. Matthew “have confirmed that [Mr.] Matthew owns a 2014 Honda Civic with Ontario licence number CFNL 349.

This corroborates that Matthew drives a newer model Honda Civic.” • Mr. Matthew’s criminal record includes drug convictions. The surveillance of Mr. Matthew conducted by police on October 28, 2018 revealed that he attended “numerous locations for short and long periods of time.” Officer Duran states that he believes this is “consistent with someone who is involved in the drug trade.” 46 .

In Appendix D, under the heading “Concluding Overview in Relation to the Confidential Source”, Officer Duran describes the “positive features of the confidential source and his/her information.” The ITO describes “how the source knows Jayron Matthew, how long the source has known Jayron Matthew and information about the source’s background.” The ITO also states that the C.I. “is providing first-hand knowledge of the information provided.”

47. In Appendix D, under the same heading, Officer Duran describes the “negative features of the confidential source and his/herinformation.” The judicial

summary states that paragraph 15 “discloses specific detailed information about the lifestyle of theconfidential source.” The judicial

summary states that paragraphs 16 and 17, disclose “whether or not the confidential source has acriminal record and whether or not the confidential source is before the court on any charges.” 48. In Appendix D, Officer Duran states that the C.I. provided credible information in the past. The judicial

summary states thatparagraph 18 of Appendix D, “discloses details about the information the source has provided in the past and seizures that resulted fromthe information provided.” 49. In Appendix D, Officer Duran states that none of the information provided by the C.I. “has been proven false.” He also statesthat “the information is compelling.” 50. Appendix D discloses whether the C.I. has a criminal record. If the C.I. has a criminal record, Appendix D includes detailsregarding the criminal record. LEGAL PRINCIPLES (

a) The Requirements for Issuing a Search Warrant 51. A justice issuing a search warrant must have reasonable grounds to believe that an offence occurred and the “the material insupport of the warrant must raise a reasonable possibility of discovering evidence of the crime at the place of the proposed search”:Brown, at para. 31. 52. Where an ITO is based primarily on information provided by a C.I., the authorizing justice must consider the totality ofcircumstances to determine “if the confidential information is sufficiently credible, compelling and corroborated”: R. v. Chioros, 2019ONCA 388, at para. 17; R. v.

Debot, (SCC), [1989] 2 SCR 1140, at p. 1168. Weaknesses in one of these factors may be“compensated by the strength of others”: Brown, at para. 32. (

b) Reviewing the Validity of a Search Warrant 53. The review of the validity of a search warrant begins from a presumption that the warrant is valid: R. v. Sadikov, 2014 ONCA72, at para. 83. The onus is on the accused to establish that a search warrant was not validly issued. 54. It is not the role of the reviewing judge to decide whether he or she would have issued the warrant. Instead, a reviewing judgemust determine whether the issuing justice could have issued the warrant: Brown, at para. 34; Sadikov, at para. 84; R. v. Kalonji, 2022ONCA 415, at para. 19. 55.

A reviewing judge is entitled to draw inferences from the contents of an ITO: R. v. Nero, 2016 ONCA 160, at para. 71; Kalonji,at paras. 24-26. It is “of no moment” that an item of evidence in an ITO may “support more than one inference, or even a contraryinference to one supportive of a condition precedent”: Nero, at para. 71.

That is because, for a judge reviewing the validity of a searchwarrant, “the inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably bebelieved on the basis of which the warrant or order could have issued”: Nero, at para. 71. [Emphasis in original.] 56. The constitutional standard for drafting an ITO is not perfection: R. v. Baldwin, (ON SC), at para. 3. Areview of a search warrant is not an “exercise in examining the conduct of the police with a fine-tooth comb, fastening on their minorerrors or acts or omissions”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

A reviewing judge is required to consider the ITO as a wholeand must conduct the review based “on a contextual analysis, not a piecemeal approach to individual items shorn of their context in avain search for alternative exculpatory inferences”: Nero, at para. 68. (

c) Sub-facial Challenge to a Search Warrant 57. In this case, the defence advanced a sub-facial challenge to the validity of the search warrants. A facial challenge “simply looksto whether the ITO, on its face, was sufficient to support the warrant: Crevier, at para. 73. A sub-facial challenge goes “behind the formof the ITO to attack or impeach the reliability of its content”: Sadikov, at para. 38. On a sub-facial challenge, “errors and inaccuracies inthe ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith”: Crevier, at para.74. 58.

In determining the validity of a search warrant on a sub-facial challenge, “the reviewing judge inquires into whether, based onthe record as amplified on review, ‘there was at least some evidence that might reasonably be believed on the basis of which theauthorization could have issued’”: Crevier, at para. 74; Sadikov, at para. 38. 59. Since the decision as to whether the statutory conditions have been satisfied focuses on an affiant’s reasonable belief, “theGarofoli analysis does not determine whether the allegations in support of the authorization were ultimately true”: R. v. Phan, 2020ONCA 298, at para. 51.

Instead, a court must determine whether the affiant “had a reasonable belief in the existence of the requisite

statutory grounds”: R. v. Pires; R. v. Lising, 2005 SCC 66 , [2005] 3 SCR 343, at para. 41. This will turn “on what the affiantknew or ought to have known at the time the affidavit in support of the authorization was sworn”: Phan, at para. 51; R. v. Paryniuk, 2017ONCA 87, at para. 77; leave to appeal refused (S.C.C.). 60. While an affiant is not permitted to ignore signs “that other officers may be misleading them or omitting material information”,unless there is some indication that something is “amiss”, an affiant is “not required to conduct their own investigation”: World BankGroup v.

Wallace, 2016 SCC 15 , [2016] 1 SCR 207, at paras. 122-123; Phan, at para. 51. 61. Even where it has been established that information in an ITO is inaccurate or omits material facts, “it does not follow that thestatutory requirements have not been met”: R. v. Beauchamp, 2015 ONCA 260, at para. 88. Errors or omissions in an ITO, whetherfraudulent or inadvertent, are not, on their own, a sufficient basis to set aside a search warrant: Nero, at para. 72; Sadikov, at para. 87; R.v. Araujo, 2000 SCC 65 , [2000] 2 SCR 992, at paras. 51-60. (

d) Duty to Make Full, Frank and Fair Disclosure 62. An affiant must make full, frank and fair disclosure in an ITO of all material facts, whether favourable or not: Araujo, at para.46; R. v. Booth, 2019 ONCA 970, para. 54; R. v. Morelli, [2010] SCR 253, at para. 58.

Material facts include: a. information that could undercut the probability that the alleged offence has been committed; b. information that could undercut the probability that there is evidence to be found at the place of the search; and c. information that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds forthe warrant. 63. An affiant “bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides”: Booth, supra, atpara. 54 [Emphasis added].

Affiants must be “particularly careful not to ‘pick and choose’ among the relevant facts in order to achievethe desired outcome”: Morelli, at para. 58. 64. Where it has been shown that material information that would undermine a finding of reasonable and probable grounds has beenimproperly omitted, the ITO “will be amended before the sufficiency of the grounds for issuing the warrant is reviewed”: R. v. Greer,2020 ONCA 795, at para. 125; Booth, at para. 59.

The reviewing court must then “determine based on that corrected ITO whether thewarrant could properly have issued if full and frank disclosure had been made”: Booth, at para. 57; Phan, at para. 53. 65. An amendment can be achieved through excision or amplification. Excision occurs when “information shown to be inaccurateis simply deleted from the ITO”: Greer, at para. 126.

As stated in Booth, at para. 59, “amplification entails adding information thatshould have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurateinformation.” However, information should not be added where it could “advance the warrant application” unless the “error in notmaking full and frank disclosure is (1) a ‘minor technical error’; and (2) made in ‘good faith’”: Booth, at para. 59; Greer, at para. 126. OFFICER DURAN’S EVIDENCE 66. As I previously stated, I granted leave to cross-examine Officer Duran in a number of areas. 67.

In this section, I will review some of Officer’s Duran’s testimony and make factual findings regarding certain issues raised bythe defence about Officer Duran’s evidence. The defence argued that Officer Duran was not a credible witness and that his evidencewas not reliable. 68. At the outset, I will set out my overall conclusions regarding the credibility of Officer Duran and the reliability of his evidence. For reasons that I will explain in this section, I found Officer Duran’s approach to his duties was, at times, sloppy.

However, based onmy assessment of all of his evidence, I have concluded that Officer Duran was a credible witness who provided reliable evidence. (

a) October 27, 2018 Observations 69. One of the main arguments made by the defence in support of the s. 8 application was that Officer Duran fabricated theobservations that he stated in the ITO were made on October 27, 2018. The defence argued that Officer Duran relied on the fabricatedobservations to corroborate the C.I.’s tip. Defence counsel asserted that this fabrication “would have misled the issuing justice intobelieving that there was a stronger link between the target, the target vehicle and the target address” than was available based on theinvestigation conducted by the police.

Defence counsel argued that the entire paragraph should be excised “based on the evidencepointing to the likelihood of fabrication.” 70. Paragraph 14 of Appendix C summarizes the observations from October 27th, 2018. In this paragraph, Officer Duran states asfollows: “On Saturday, October 27th, 2018, at approximately 2:45 p.m., a member of the Guns and Gang Task Force attended 2535 EglintonAvenue West and observed the 2014 Honda Civic with Ontario licence CFNL 349.

a. MATTHEW was not observed on this date.” 71 . Officer Duran testified that he was the member of the Guns and Gang Task Force who made the observations on October 27th. 72 . Defence counsel suggested that Officer Duran fabricated his role in these observations to conceal his misrepresentation in the ITO. In support of this position, defence counsel argued that, in certain areas, Officer Duran’s evidence was improbable and inconsistent.

While I will address the issues raised by defence counsel individually, my ultimate conclusions regarding Officer Duran’s credibility, and the reliability of his evidence, are based on his evidence as a whole. 73 . Officer Duran testified that on October 27 th his shift at the Guns and Gang Task Force began at 5:00 p.m. He testified that before his shift started, he decided to attend 2535 Eglinton Avenue West to determine if he could make any observations that would be of assistance in this investigation. Officer Duran testified that he lives “in close proximity to Mr.

Matthew’s residence.” This was a neighborhood that was very familiar to Officer Duran. According to Officer Duran, he was driving an unmarked “company car” that day. He was by himself. He was not wearing a police uniform. 74 . Officer Duran testified that at about 2:45 P.M. he saw a 2014 Honda Civic with Ontario licence plate CFNL 349 parked directly behind 2535 Eglinton Avenue West. 75 .

When asked to describe the length of time he conducted surveillance that day, Officer Duran responded, “[b]rief enough to see that the vehicle was behind there, and I didn’t stick around too long in that area.” He added that he did not have a “specific time” but said, “I could have been in there – in that area to set up to get that observation anywhere from five to ten minutes.” 76 .

Officer Duran testified that he made notes of his observations in a steno pad “in and around the time or shortly thereafter.” He testified that the reason he used a steno pad to make these notes was because he did not have his Guns and Gang Task Force notebook with him. 77 . Officer Duran’s notes from October 25, 26, 28, 29, and 30, 2018 were provided to the defence on January 16, 2019. All of these notes were in Officer Duran’s Guns and Gang Task Force notebook. The steno pad notes dated October 27, 2018 were not disclosed to the defence until September, 2019. 78 .

Officer Duran testified that the notes he made in the steno pad on October 27 th were disclosed late “because they were forgotten in the steno pad.” When asked by defence counsel why he did not take the page with the notes out of the steno pad and include it with the rest of the notes that he made during this investigation, Officer Duran responded, “because clearly I forgot.” 79 . On several occasions, from April to June, 2019, defence counsel sent letters requesting additional disclosure, including a request for the notes of the officer who made the observations on October 27 th .

Officer Duran testified he was aware that defence counsel had sent requests for additional disclosure starting in the spring of 2019. Officer Duran testified that “at the time I believed I had disclosed all my notes.” He told Crown counsel that the notes from that day had already been disclosed. In this response to Crown counsel’s disclosure inquiry, Officer Duran did not mention that he was the officer who made the observations on October 27 th . 80 . Officer Duran testified that he does not recall how he eventually came to learn that his notes from October 27 th had not been disclosed.

He testified that as soon he was aware that his notes from that day had not been disclosed, he attempted to find his steno pad and disclose the notes. However, he said that this took some time because he had transferred out of the Guns and Gang Task Force. 81 . After considering all of the evidence, it is my conclusion that the late disclosure of Officer Duran’s notes from October 27 th was the result of an oversight by Officer Duran. I accept that he initially forgot to disclose his steno pad notes from October 27 th when he disclosed the notes contained in his Guns and Gang Task Force memo book.

I accept his testimony that when the Crown asked for disclosure of the notes of the officer who made the observations on October 27 th , Officer Duran failed to remember that he had not disclosed his notes from that date, and responded that the notes had already been disclosed. Based on all of the evidence, I have concluded that the late disclosure of these notes and Officer Duran’s initial response to the disclosure request for the October 27 th notes - that the notes from this day had already been disclosed - were the product of Officer Duran’s inattention to his disclosure obligations.

I am not satisfied that they were the result of an attempt by Officer Duran to conceal that he had fabricated evidence in the ITO. This conclusion is consistent with my general impression of Officer Duran. In my view, while he was occasionally sloppy when performing his duties in this case, I found him to be a credible witness. The fact that Officer Duran should have disclosed the notes from October 27 th , 2018 long before September, 2019, does not establish - by itself or together with all of the other evidence - that Officer Duran fabricated the October 27 th observations. 82 .

Defence counsel points to an inconsistency in Officer Duran’s testimony in support of the conclusion that he fabricated evidence. On March 17, 2020, Officer Duran testified that after he made the observation on October 27 th , he “ would have advised either the road boss or Detective Wauchope, saying that the target vehicle is parked in the same spot there.” [Emphasis added.] [3] On October 1, 2020, he testified that when he arrived at the Guns and Gang Task Force office after making the observation at 2535 Eglinton Avenue West on October 27 th “there was no discussion” about what he had observed.

He testified that he “had no specific recollection” of telling anybody that day about this observation. Officer Duran also testified “I can only tell you that I didn’t tell anyone…”. After considering all of his evidence, I am not satisfied that the apparent inconsistency in his testimony on this point establishes that Officer Duran deliberately provide d a false answer on March 17 th or fabricated the October 27, 2018 observations. It is my conclusion that his initial response (“I would have advised…”) was not a carefully considered answer to the question.

In my view, this answer suggests that he had no actual recollection of speaking to anyone about his observation. I have concluded that after Officer Duran considered the question more carefully, he recognized that he had no recollection of speaking to anyone about what he saw on October 27 th . 83 . The defence argues that Officer Duran’s description in the ITO of the observations made on October 27 th supports the

conclusion that he fabricated these observations. Defence counsel notes that Officer Duran did not refer to himself in the third person in other parts of Appendix C. However, it should be noted that on four occasions in Appendix D, Officer Duran referred to himself in the third person.

It should also be noted that Officer Duran used somewhat similar language in the first sentences of both paragraphs 13 and 15 of Appendix C to describe observations made by officers on October 26 th and October 28 th . as he used in paragraph 14 to describe the observations made on October 27 th : • Paragraph 13: “On Friday, October 26 th , 2018, members of the Guns and Gang Task Force attended 2535 Eglinton Avenue West and observed the following…” • Paragraph 14: “On Saturday, October 27 th , 2018, a member of the Guns and Gang Task Force attended 2535 Eglinton Avenue West and observed the 2014 Honda Civic with Ontario licence number CFNL 349.” • Paragraph 15: “On Sunday, October 28, 2018, members of the Guns and Gang Task Force attended 2535 Eglinton Avenue West and conducted surveillance.

Members observed the following…” [Emphasis added.] 84 . I am not satisfied that Officer Duran referred to himself in the third person in paragraph 14 because he was attempting to conceal the identity of the officer who he claims made the observations on October 27 th . As previously noted, in drafting paragraphs 13 to 15, Officer Duran summarized the observations that were made by the officers using similar language for each day. 85 .

Defence counsel suggested that when Officer Duran included the October 27 th observations in the ITO he could have believed that he would never be asked to disclose the name of the person who made that observation. Officer Duran is an experienced officer.

While I have some concerns about both Officer Duran occasionally being sloppy during this investigation and (as I will explain later in these reasons) his understanding of some of his obligations as an affiant, in my view, he would have understood that it would be unreasonable to include a fabricated observation of this nature in an ITO, with an expectation that he would not be required to reveal, at some point, who made the observation (and disclose his notes from that day). [4] 86 .

When considering whether Officer Duran lied about the October 27 th observation, it is also worth noting that while this observation provided some corroboration to the C.I.’s information, it was not critical evidence that was necessary to establish that there were reasonable and probable grounds to believe that evidence of an offence would be found at 2535 Eglinton Avenue West or in the Honda Civic. Indeed, in my view, given the police observations of the Honda Civic at 2535 Eglinton Avenue West on October 26 th and 28th., Officer Duran’s observations on October 27 th added very little to the grounds.

In my view, concocting this observation would, objectively, make little sense. 87 . After considering all of the evidence, it is my conclusion that Officer Duran did not fabricate the October 27 th observation. I accept that Officer Duran saw the 2014 Honda Civic at 2535 Eglinton Avenue West on October 27, 2018. (

b) The Description of Mr. Matthew’s Height and Weight in the “Person of Interest” Package 88 . Officer Duran testified that on October 25, 2018 he prepared a “person of interest package” regarding Mr. Matthew. This document included information that Officer Duran obtained from investigative checks. Officer Duran briefed the other members of his team on October 25 th about the investigation based on the information in the person of interest package. The package was provided to other officers on his team and was used by them when they conducted surveillance.

Officer Duran testified that he did not use the person of interest package when he prepared the ITO. 89 . The person of interest package contained a 2014 TPS booking photo of Mr. Matthew. It also contained a more recent MTO photograph of Mr. Matthew. In the person of interest package, Officer Duran described Mr. Matthew as 5’7”, 186 pounds, with short black hair and brown eyes. In cross-examination, Officer Duran could not explain where he obtained this description, as no document that he was aware of described Mr. Matthew as 5’7” or 186 pounds. CPIC records state that Mr. Matthew is 5’10” and 166 pounds.

MTO records state that he is 5’8”. Mr. Matthew’s height and weight, as described in CPIC records, was included in the ITO. The MTO description of Mr. Matthew’s height was also included in the ITO. The description of Mr. Matthew as 5’7’ and 186 pounds was not included in the ITO. Officer Duran testified that the description of Mr. Matthew that he included in the person of interest package was “more than likely an error on my part.” Officer Duran suggested that when preparing the person of interest package, he may just incorrectly typed “7” instead of “8” (for Mr. Matthew’s height) and “1 8 6” instead of “1 6 6”.

He testified that, between October 25 th and October 29 th , he did not realize that the height and weight that he had included in the person of interest package was not the same information that he had obtained from investigative checks (and included in the ITO). 90 . I accept Officer Duran’s evidence that the description of Mr. Matthew’s height and weight that he included in the person of interest package was simply an error on his part. There was no evidence that this description was found in any other document. Officer Duran’s explanation about how this error might have occurred appears reasonable. (

c) Honda – Ontario Licence Plate CFNL 349 91 . The person of interest package prepared by Officer Duran refers to two vehicles that were “associated” to Mr. Matthew. Officer Duran obtained this information from an MTO database. According to the MTO database, one of the vehicles was described as a brown 2014 Honda “UCL” with Ontario licence plate CFNL 349. [5] The MTO database did not refer to the car as a “Civic.”

92 . During the course of the investigation, Officer Duran did not take steps to confirm that the MTO code “UCL” is a Honda Civic. He testified that he was familiar with the MTO codes for some other Honda models, which did not use the code “UCL”. He later testified that he assumed that “UCL” referred to a Honda Civic. He noted that Mr. Matthew only had one Honda registered to his name and it matched the description provided by the C.I. As previously stated, the C.I. described the car as “a newer model Honda black in colour possibly 2013 model.” The C.I. did not tell the C.I. handler that Mr.

Matthew’s car was a Civic. 93 . In the ITO, Officer Duran referred, on numerous occasions, to a “Honda Civic with Ontario licence plate CFNL 349”. He did not mention in the ITO that the MTO database stated that the car was brown . Officer Duran testified that it was “maybe an oversight that I didn’t include the colour” and suggested that he must have “got in the grove of typing in the year, make and model and the plate number, and I left the colour out.” Officer Duran testified that he “wasn’t trying to be misleading or anything.” [6] 94 .

In cross-examination, Officer Duran denied defence counsel’s suggestion that the reason he did not mention that the MTO records referred to the car as a “ brown ” Honda “ UCL ” (not a black Civic) was because this information did not corroborate the C.I.’s information. 95 . When testifying about his failure to mention in the ITO that the MTO records referred to the car owned by Mr. Matthew as a brown Honda “UCL”, Officer Duran acknowledged that the ITO contained “errors” but observed that he did not “have weeks or months to prepare this document to ensure it was flawless.” 96 .

When describing the observations made by officers of the Honda Civic in the ITO, Officer Duran did not mention the colour of the car. According to Officer Duran, this Honda Civic has “a unique colour…it is brown if you really look at it, but at a glance, almost looks black.” Officer Duran testified that the first time he realized the Honda Civic was brown was when the search warrants were executed on October 30 th . He testified that when he made a “quick observation” of the Honda Civic on October 27 th it looked black to him. 97 .

In considering the question of whether Officer Duran intentionally withheld material facts in the ITO, it is worth noting that he also failed to include information in the ITO that could have supported the conclusion that there were reasonable grounds to believe that evidence of an offence would be found at 2535 Eglinton Avenue West and in the 2014 Honda Civic. For example, Officer Duran did not include in the ITO that during an HTA stop, Mr. Matthew provided his home address to the officer – this information would have bolstered the grounds in support of the warrant. 98 .

During cross-examination, Officer Duran suggested that when he was preparing the ITO he may have initially typed “2014 Honda Civic with Ontario licence plate number CFNL 349” and just copied that description later in the ITO. After considering all of his evidence, I accept that is what likely happened. As previously stated, the evidence in this case reveals that Officer Duran was, at times, sloppy in carrying out his duties. There are a number of examples of Officer Duran’s inattention to details in this case, including: (

i) his failure to make a note of his conversation with the C.I. handler about the corrected address; [7] (ii) his failure to accurately respond in a timely way to disclosure requests for his notes from October 27 th ; (iii) his failure to disclose his notes from October 27 th at the same time as he disclosed his other notes; and (iv) his failure to determine what the MTO code “UCL” means. 99 . I have concluded that Officer Duran’s failure to mention in the ITO that MTO records described the Honda associated to Mr. Matthew as a brown Honda UCL, and not a black Honda Civic, was an oversight on his part.

Based on all of the evidence, I do not accept that Officer Duran deliberately decided not to include information from MTO records that the Honda was brown and described as “UCL”. (

d) Officer Duran’s Understanding of his Obligations as Affiant and Whether He Deliberately Misled the Issuing Justice 100 . Defence counsel argued that Officer Duran has a “misapprehension of the duty to be full, fair and frank as an affiant in selecting what to include in an ITO.” In support of this position, defence counsel relies on the following excerpt from the cross-examination of Officer Duran on March 17, 2020: “Q. And if you had received information from the confidential informant which was inconsistent with the information that you located through your database checks, what would you do? A.

I’m sorry, I wouldn’t have direct contact with the source. But if you mean to clarify, if if -information from the source and relayed to me by the handler, would that… Q. That’s correct. A. If it was inconsistent? Q. Right. A. I believe I, I did find an inconsistency with the address – in regards to the address, and that was noted in the corroboration portion of Appendix D. But to go further into in in general, do I usually make a note of inconsistencies in a warrant? No, not necessarily. Q. So you don’t make… A. I just point out what’s been corroborated. Q. I see.

A. So the issuing justice would have what the source has provided and what the police have corroborated from that information. Q. So you wouldn’t put in information in the ITO which was – which – from what you – the investigation that you conduct, which was inconsistent with the informant information? A. That’s correct. I would not list what’s been corroborated and what’s not been corroborated. I just list my corroborating information, stuff that’s been corroborated . Q. All right. A. There’s some information that sources provide that are impossible to corroborate through surveillance, or any other means. Q.

So I understand that, but you wouldn’t necessarily list information that you haven’t been able to corroborate? A. That’s correct. I mean, I can’t read the minds of a justice of a peace or a justice. I mean, they would see what the information was and what we, what we were able to corroborate so…” [Emphasis added.] 101 . In my view, there are two ways that Officer Duran’s testimony during this exchange could be interpreted. First, Officer Duran would not include any information in an ITO that the police obtained during the course of an investigation which was inconsistent with a C.I.’s tip.

Second, Officer Duran would include in the ITO information that was inconsistent with a C.I.’s tip (for the issuing justice “to see what the information was”) but he would not “list” or highlight this information. Instead, in the ITO he would just highlight information that corroborated the C.I.’s tip. 102 . In my view, both approaches are incorrect. The first approach is obviously a more serious matter and is fundamentally inconsistent with the duties of an affiant. However, the second approach is also incorrect. An affiant has an obligation to be fair in the presentation of information in an ITO.

Only highlighting information that corroborates a C.I.’s tip (while including information that does not corroborate the C.I.s tip elsewhere in the ITO) creates a risk that the issuing justice could be misled. 103 . In deciding what Officer Duran meant in the above-mentioned exchange, it is helpful to consider what he said when he was cross- examined on March 16, 2019. On that day, Officer Duran was cross-examined about whether he understood that he was required, as an affiant, to include in the ITO all relevant information that was in his possession, whether it was consistent or inconsistent with a C.I.’s tip.

Officer Duran testified he understood that, “it’s my obligation to be full, frank and fair with what I’m putting into the warrant…”. Officer Duran was asked to explain his understanding of “full, frank and fair”, which was followed by this exchange: A. Any information that’s, that you rely on, any information that you conduct in terms of your investigative checks, surveillance, anything that’s observed during that portion, any information that’s relevant to the investigation and the accused. Q. And do you think you did that in this case? A. Again, I’ve said multiple times, to the best of my ability, yes. Q. Okay.

And do you think you not including the vehicle colour, the vehicle model, not including the description from the POI package in the ITO, that was you being full, fair and frank? A.

Again, it would have, it’s an error that I’ve agreed to, that I’ve made 10 times in the ITO, so I guess I wasn’t full, frank and fair in that sense, but again my evidence is that it’s an oversight, and that I continued with that oversight, and that I didn’t mention it; yes, the issuing justice wasn’t privy to the colour brown, but my, my team was and I wasn’t trying to hide the fact that the information from the handler or source was black and the information that I had was brown, so… Q. But you, but you did hide that by not including that in the ITO? A.

It, it wasn’t meant to mislead, so that’s my evidence. 104 . A short time later, defence counsel asked Officer Duran the following question and he provided the following answer: “Q. And you’re also required to provide any information that’s in, in, the information that you have from the source, information that’s inconsistent with information that you have from the source – that you’re required to provide that in the ITO? A. That’s correct. Again, I did not do that with the vehicle, I did that with the address, so…” 105 .

His testimony from March 16, 2019, if believed, supports the conclusion that Officer Duran understood his obligation to include information in an ITO that is inconsistent with a C.I.’s tip, even if he did not appreciate that he should not only highlight information that corroborates the C.I.’s tip. 106 . Having observed Officer Duran testify, it is my conclusion that, at times, he failed to appreciate the importance of providing precise answers to questions. Officer Duran should have been clearer in his evidence on March 17, 2019.

However, I have concluded that Officer Duran understood that he had an obligation as an affiant to include information that was inconsistent with a C.I.’s tip in the ITO. In arriving at that conclusion, I note that he did include information in the ITO that the C.I. handler had originally provided a different address than 2535 Eglinton Avenue West. Further, as previously stated, Officer Duran did not include some information in the ITO that would have bolstered the grounds. 107 .

I have concluded that Officer Duran understood his obligation to provide information in the ITO that was inconsistent with the C.I.’s tip, but he failed to follow through with that duty on more than one occasion (including the MTO description of the 2014 Honda as brown). However, I have concluded that this was the result of carelessness. I do not believe that Officer Duran intentionally withheld material facts from the issuing justice.

(

e) The Documents Relied on by Officer Duran in Preparing the ITO 108 . Officer Duran testified that he did not print copies of the results of his database searches at the time he made these checks. In response to a disclosure request for the documents Officer Duran used during the investigation, he testified that he accessed electronic documents and prepared a “cut and paste screen-shot of what information I relied on would have looked like back [at the time of the investigation].” He testified that “nothing subsequently has changed in relation to Mr.

Matthew on our databases because he’s been in custody since the 30 th of October.” 109 . Officer Duran testified that in preparing the ITO, he relied on “the information that my team was putting over the air” (as the officers were conducting surveillance) – and he typed that information into the draft ITO as it was provided. He did not indicate in the ITO which officers made the observations. 110 . Officer Duran stated that he made his notes after he typed the information that he received “over the air” from other officers about the surveillance.

In his notes, he included the names of the officers who made the observations during surveillance. Officer Duran testified that he would not have remembered, when preparing his notes, the names of the officers who provided the surveillance observations to him. Officer Duran said that he would have received that information from a surveillance report. 111 . He testified that he may have also looked at surveillance reports for information about “times.” He later testified that he looked at least one surveillance report “to clarify things” and to ensure that he didn’t miss anything.

The surveillance report was not included in his “investigative file” (but was later disclosed to the defence). Officer Duran could not recall who prepared this surveillance report or who provided it to him. Officer Duran agreed with defence counsel that he could not indicate what information in the ITO came from the surveillance report. 112 . Officer Duran was asked in cross-examination whether he was required, as the affiant, to keep any documents that he relied on to draft the ITO in the investigative file.

Officer Duran responded, “Not necessarily, no.” He explained that his investigative file: “…consists of what I type in from searches and that’s what my investigative file is always – that’s always been my practice, so anything that comes back from a database, anything that I put in the ITO and necessarily the surveillance report is being disclosed, which is not part of my investigative file.” 113 . Officer Duran was asked again whether he is required to keep a copy of documents that he relied on when drafting the ITO.

Officer Duran responded: “Hasn’t been my practice I guess; I’ve literally laid out what has been in the investigative file and what I’ve done as an affiant; and those are checks I’ve conducted.” 114 . In my view, while Officer Duran should have printed and kept paper copies of all database checks that he relied on when he was preparing the ITO (at the time he initially conducted the checks), I do not accept that he failed to maintain paper copies in an effort to frustrate a review of his ITO.

Further, I am not satisfied that he failed to disclose any relevant documents or database checks that he made when he was preparing the ITO. [8] Finally, given the disclosure that was provided to the defence and the cross-examination of Officer Duran, I see no basis to conclude that a proper review of Officer Duran’s work as an affiant could not be conducted. (f) 2531 Eglinton Ave West/2535 Eglinton Avenue West 115 . The C.I. handler initially provided Officer Duran with information that connected Mr. Matthew to 2531 Eglinton Avenue West.

In the ITO, Officer Duran states that he “confirmed that [the C.I. handler] meant 2535 Eglinton Avenue West and not 2531 Eglinton Avenue West as originally reported to the affiant.” 116 . Officer Duran testified that he had a telephone conversation with the C.I. handler “before the warrant was issued” and “received information that it was 2535 that was originally meant, not 2531.” Officer Duran did not make a note of this conversation. 117 . In cross-examination, Officer Duran mentioned that 2531 and 2535 are separated by “one or two units.” They are both on the south side of Eglinton.

Officer Duran testified that he could not say “what was said between the handler and the source, but I received information that it was 2535 that was originally meant, not 2531.” Officer Duran did not know whether it was the C.I. or the C.I. handler who originally made the mistake of associating Mr. Matthew to 2531. 118 . The issuing justice was aware that the C.I. handler had originally connected Mr. Matthew to 2531 Eglinton Avenue West.

The issuing justice was also aware of Officer Duran’s statement in the ITO that he “confirmed that [the CI handler] meant 2535 Eglinton Avenue West and not 2531 Eglinton Avenue West as originally reported to the affiant.” In my view, the issuing justice would not have been misled by the information provided by Officer Duran in the ITO regarding this issue. While Officer Duran should have made a note about the conversation he had with the C.I. handler, I am not satisfied that Officer Duran fabricated that the C.I. handler clarified that the address associated with Mr. Matthew was 2535 Eglinton Avenue West.

PROPOSED EXCISIONS AND AMPLIFICATIONS

119 . Defence counsel argued that there should be a large number of excisions from, and amplifications to, the ITO. In considering each proposed excision and amplification, I have taken into account the findings that I made in the previous

section regarding Officer Duran’s evidence. 120 . Based on the evidence called on this application, I am satisfied that it necessary to excise some erroneous information from the ITO. Further, as a result of Officer Duran’s failure to disclose certain material facts, it is also necessary to “fill in the gaps in the original ITO”: Morelli , at para. 60; Booth , at para. 59 . 121 . In the following list, I have addressed each proposed excision and amplification. I have highlighted where the ITO should be amended, either through excision or amplification: (

i) The defence argued that Officer Duran failed to include material information in the ITO when he did not mention that the MTO record described the Honda associated to Jayron Matthew as “brown” and used the code “UCL” to describe the model. I agree that this information should have been included in the ITO. As previously stated, the C.I. told the C.I. handler that the car was a “newer model Honda black in colour possibly 2013 model.” The ITO will be amplified to indicate that the MTO database described the Honda as “brown” and the MTO code described the model as a “Honda UCL” .

As mentioned in the ITO, while conducting surveillance, police officers saw Mr. Matthew drive a 2014 Honda Civic. Police also observed this car parked behind 2535 Eglinton Avenue West on October 26 th , 27 th and 28 th . (ii) The defence argued that Mr. Matthew’s youth record should be excised from the ITO because Officer Duran failed to comply with s. 123 of the Youth Criminal Justice Act ( YCJA ). I do not agree. Given the temporal proximity of Mr.

Matthew’s conviction for an indictable offence as an adult to his last YCJA entry, pursuant to s. 119(9) of the YCJA , his YCJA record is to be dealt with as a record of an adult. (iii) The defence argued that information contained in paragraphs 12(b), 12(

c) and 12 (

d) of Appendix C should be excised. The information that the defence argued should be excised from paragraph 12(

b) summarizes a number of Criminal Code and CDSA charges against Mr. Matthew that were withdrawn in 2014 and 2015. Paragraph 12 (

c) refers to three entries on the TPS Versadex system from 2014 to 2017. According to the TPS Versadex record, Mr. Matthew was charged for drug offences in 2014 but was not convicted of these offences. In 2017 and 2018, Mr. Matthew was charged with two Highway Traffic Act offences. This

summary does not indicate what happened to those charges. Paragraph 12 (

d) states that there are 40 entries between 2003 and 2014 for Mr. Matthew on the TPS Unified database. There is no indication in this

section what happened to these matters. None of this information adds anything to the grounds relied upon by the Crown. I am confident that the issuing justice gave no weight to any of this information when assessing the grounds. (iv) The defence argued that paragraph 13 of Appendix C should be amplified. Paragraph 13 provides a very brief

summary of what police observed on October 26, 2018. The defence argued that the ITO should be amplified to include information that the objective of the surveillance was to observe drug trafficking activity and “characteristics of an armed person”, and that the surveillance officers did not report observations of either that day. I would not characterize this as a material omission. Paragraph 13 provides a

summary of what was seen that day. While an affiant has an obligation not to omit material facts in an ITO, this duty usually does not require an affiant to include observations that were not made by the police: Nguyen , at para. 50 . As Blair J.A. concluded in Nguyen , at para. 50 , “in most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done.” In this case, it was not necessary for the affiant to include information about observations that the police did not make that day or the objective of the surveillance. (

v) The defence argued that paragraph 13 (

a) of Appendix C should be “re-worded” as it is not an accurate account of what transpired on October 26 th. The defence took the position that the ITO, as written, would have misled the issuing justice. Paragraph 13 (

a) states, “At approximately 10:00 p.m., a Honda Civic with Ontario licence number CFNL 349 parked in the rear of the address [2535 Eglinton Avenue West]. The vehicle had a dark-coloured plate guard on the rear plate.” Defence counsel pointed out that the notes of the officer who made this observation state, “plate not visible, tinted colour, appears to be V1.” Based on this evidence, “Ontario licence number CFNL 349” will be excised from paragraph 13(a).

The ITO will also be amplified to include the words, “plate not visible, tinted colour.” However, the evidence also establishes that the surveillance report that Officer Duran relied on when preparing the ITO stated that the target vehicle was located at the target address on that date.

Officer Duran was entitled to rely on the surveillance report from October 26 th when preparing the ITO. (vi) The defence argued that paragraph 14 of Appendix C should be completely excised “based on the evidence pointing to the likelihood of fabrication.” I have previously stated that it is my conclusion that Officer Duran did not fabricate this evidence.

There is no basis to excise paragraph 14. (vii) The defence argued that paragraph 15 of Appendix C, which summarizes observations that were made by the police on October 28, 2018, should be amplified to include information that the objective of the surveillance was to observe drug trafficking activity and “characteristics of an armed person” - and that the surveillance officers did not report observations of either that day. It was not necessary for the affiant to include information about observations that the police did not make that day or the objective of the surveillance.

These were not material omissions. (viii) The defence argued that paragraph 15(b)(iii) of Appendix C should be amplified. Paragraph 15(b)(iii) states, “Matthew was observed going to and from the vehicle and the driveway of 2535 Eglinton Avenue West and entering the basement unit of the address.” The defence took the position that this paragraph should be amplified by adding that Mr. Matthew was not observed by police to use a key to enter the residence. I do not agree with the position of the defence on this issue.

It was not necessary for the affiant to include information about an observation that the police did not make that day. I do not believe that the issuing justice would have concluded that Mr. Matthew used a key to enter the apartment. (ix) The defence argued the statement in paragraph 15(b)(iii) of Appendix C that “Matthew was observed going to and from the vehicle in the driveway” should be excised because it was not in the central notes or any other officers’ notes from October 28 th . I do not

agree with this argument. Officer Duran testified that as surveillance officers broadcast their observations over a police radio, he inputted that information into the draft ITO. The fact that another officer (including the officer who was responsible for central notes) did not make a note of a specific observation does not mean that this information was not broadcast over the police radio and relied upon by Officer Duran. I accept that the information in paragraph 15(b)(iii) was provided by one of the surveillance officers over the police radio.

As a sub-facial challenge turns on what an affiant knew or ought to have known at the time an ITO was sworn, the accuracy of the ITO is measured against the affiant’s reasonable belief at that time: World Bank Group , at para. 121 . I see no reason to conclude that Officer Duran knew or ought to have known that “something was amiss” regarding this observation: World Bank Group , at para. 121 . Officer Duran was entitled to rely on this information when preparing the ITO. (

x) The defence argued that paragraph 15(b)(ii) and/or (iii) of Appendix C should be amplified. Paragraph 15(b)(

i) states that, on October 28 th , Mr. Matthew exited the Honda Civic after he arrived at 2535 Eglinton Avenue West. Paragraph 15(b)(ii) states, “Matthew was in the company of an unknown female passenger.” The next two paragraphs in the ITO describe observations made by police of Mr. Matthew at that location. The unknown female is not mentioned again in the ITO. The defence argued that paragraph 15(b)(ii) and/or (iii) should be amplified to indicate that “it was unknown at this time where the female went.” That information was contained in the notes of one of the observation officers.

I do not view the failure to mention in the ITO that the officers did not see where the unknown female went as a material omission. This information would not have undercut the reasonable grounds to believe that evidence of an offence would be found at 2535 Eglinton Avenue West or in the 2014 Honda Civic. (xi) Paragraph 15(b)(iv) of Appendix C states that at 6:56 p.m. on October 28 th Mr. Matthew got into the Honda Civic at 2535 Eglinton Avenue West and was followed by police to an Esso gas station in Mississauga, where he parked the car next to a pay phone.

The defence argued that the ITO should be amplified to include the following information:

a) Mr. Matthew was not observed carrying anything out of the apartment to the Honda Civic;

b) the police did not see anyone approach the Honda Civic at the Esso gas station;

c) Mr. Matthew was not seen leaving the vehicle at the gas station;

d) Mr. Matthew was not observed to conduct any “heat checks” for police. I have concluded that there is no basis to amplify this paragraph. The ITO does not state that Mr. Matthew carried something to the Honda Civic from the apartment or that anyone approached Mr. Matthew’s car at the gas station. The ITO does not state that Mr. Matthew got out of his car at the gas station or that Mr. Matthew conducted any “heat checks”. The issuing justice would not have concluded that any of these things occurred: Nguyen , at para. 50 . (xii) For the same reason that there was no need to amplify paragraph 15(b)(iv), there is no basis to amplify paragraph 15(b)(

v) of Appendix C to mention that Mr. Matthew was not observed carrying anything in or out of the gas station located at Leanne Boulevard and Erin Mills Parkway. (xiii) The defence argued that paragraph 15(b)(vii) of Appendix C should be amplified to include a statement that Mr. Matthew was not observed using a key to enter the apartment at 2535 Eglinton Avenue West, nor was he seen carrying anything inside the apartment. As already stated, it was not necessary for the affiant to include information about observations that the police did not make.

The failure to mention that the officers did not see these things is not a material omission: Nguyen , at para. 50 . Including this information in the ITO would not have undercut the grounds that supported the issuance of the warrants. (xiv) The defence took the position that paragraph 15(b)(viii) of Appendix C should be amplified to indicate that Mr. Matthew was parked on Uxbridge Avenue for approximately 16 minutes, and not 35 minutes. I am not satisfied that this amplification is necessary for two reasons. I am not convinced that the evidence establishes that Officer Duran erred in stating that Mr.

Matthew parked his car at that location for approximately 35 minutes. In any event, even if Mr. Matthew was parked at that location for about 16 minutes, instead of 35 minutes, it would not have had any impact on the issuing justice’s assessment of the grounds in support of the search warrants. (xv) The defence took the position that paragraph 15(b)(b)(viii) of Appendix C should be amplified to include information that while Mr. Matthew was parked on Uxbridge Avenue “it was not observed that anybody approached the vehicle, entered the vehicle nor was Mr.

Matthew seen to leave the vehicle or conduct any heat checks.” It was not necessary for the affiant to include information about observations that the police did not make. The failure to mention in the ITO that the police did not see any of those things is not a material omission. (xvi) The defence argued that paragraph 15(b)(ix) of Appendix C should be corrected to indicate that, on October 28 th , Mr. Matthew parked his car in the underground parking lot at 720 Trethewey Drive at 11:20 p.m., instead of 11:40 p.m. Based on the evidence that was introduced on this application, I agree.

The ITO will be corrected to indicate that at 11:20 p.m. Mr. Matthew parked his car in the underground parking lot at 720 Trethewey Drive. (xvii) The defence took the position that Appendix C of the ITO should be amplified to mention that on October 28 th Officer McKenzie (or another surveillance officer) entered the underground parking lot at 720 Tretheway Drive using a master key fob. In an agreed statement of facts which was filed on this application, it was agreed that about 10 years ago Officer McKenzie was issued a master key fob that gave him access to this underground parking garage.

There is no evidence before the court that the police observed Mr. Matthew use a key fob to enter the underground garage. According to an affidavit from a representative of Toronto Community Housing, key fobs to that building are issued to residents, and there was no paging system in place. The defence argued that the only logical explanation is that Mr. Matthew used a key fob to enter both the underground parking area and the building itself from the parking area. The defence argued that the ITO should be amplified to include this information as it would undercut the inference that Mr.

Matthew resided at 2535 Eglinton Avenue West. I see no basis to conclude that when Officer Duran prepared the ITO he knew or should have known about the information contained in the affidavit of the Toronto Community Housing employee. I also see no basis to conclude that any of the other officers involved in this investigation deliberately withheld this information from Officer Duran, or that Officer Duran chose not make inquiries that should have been made regarding these matters.

In any event, having regard to certain information in the unredacted ITO (which I will refer to in the endnote) this proposed amplification would not have undercut the grounds in support of the ITO. I do not view this information as material facts that should have been included in the ITO. (xviii) The defence argued that Appendix C of the ITO should be amplified to mention that on October 28 th the 2014 Honda Civic parked in a designated parking spot (parking spot 330) in the underground parking garage at 720 Tretheway Drive. The defence also

argued that the record should be amplified to mention that this was a disabled parking spot. I do not agree with either proposed amplification. In my view, this was not material information that was improperly omitted by the affiant. While this information might have been relevant to the question of whether there was a connection between Mr.

Matthew and 710 or 720 Tretheway Drive, given other information in the ITO (including certain redacted information from Appendix D of the ITO, which I will address in the Endnote), the proposed amplifications would not have undercut the grounds in support of the search warrants for the 2014 Honda Civic or the basement apartment at 2535 Eglinton Avenue West. (xix) The defence argued that the ITO should be amplified to include a statement that the police did not contact the property managers at 710 or 720 Tretheway Drive to determine the name of the tenant or tenants associated with parking spot 330.

The defence also argued that the ITO should be amplified to include a statement that the police did not show the property managers a photograph of Mr. Matthew to determine if he lived in either of those buildings. The defence also takes the position that the ITO should be amplified to include a statement that no officer approached the 2014 Honda Civic to determine whether there was an accessible parking permit in the vehicle. I do not agree with any of these proposed amplifications.

I see no basis to conclude that the police deliberately decided not to make those inquires because they thought that the answers would undermine the grounds in support of the search warrants. In any event, it is my view that including any of this information in the ITO would not have undercut the grounds in support of the search warrants. These were not material omissions. (xx) The defence argued that paragraph 15(b)(

x) of Appendix C should be amplified to mention that, by 1:30 a.m. on October 29 th , the police had not seen Mr. Matthew return to the 2014 Honda Civic that he had parked in the underground parking garage at 720 Tretheway Drive. I do not agree with this proposed amplification. There is no reason to believe that the issuing justice would have concluded that the police saw Mr. Matthew return to his car before the surveillance was discontinued at 1:30 a.m. (xxi) The defence argued that paragraph 26 of Appendix C should be corrected.

Paragraph 26 states, “[t]he vehicle registered to Jayron Matthew has been observed parked in the rear of 2535 Eglinton Avenue West on three occasions.” The defence argued that the words “on three occasions” should be changed to “two occasions.” I do not agree with the position of the defence. The ITO contains reliable information that

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