HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 35

CITATION : R. v. Reid , 2020 ONCJ 35 DATE : January 17, 2020 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — ADRIAN REID Before Justice John North Reasons for Judgment released on January 17, 2020 Ms. M. MacKinnon.................................................................................... counsel for the Crown Mr. C. Zeeh............................................................................................... counsel for the Defence NORTH J.: I.

INTRODUCTION [ 1 ] On January 30, 2018, Toronto Police Service (TPS) officers executed Controlled Drugs and Substances Act ( CDSA ) search warrants on three apartments and one motor vehicle. Inside one of the apartments officers seized a number of items including a loaded handgun, ammunition, drug paraphernalia and a little over 6 grams of powder cocaine. The police located no evidence at the other two apartments and found no contraband in the motor vehicle. [ 2 ] Earlier that day, Adrian Reid had been arrested for the offence of possession of a

Schedule I substance for the purpose of trafficking. Mr. Reid was the target of this investigation. After the police executed two of the search warrants, Mr. Reid was charged with a number of additional offences. [ 3 ] Mr. Reid challenged the admissibility of the evidence seized during the execution of the search warrant at the apartment. He brought an application pursuant to ss. 8 , 9 , 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms ( Charter ) to exclude the seized evidence. [ 4 ] The Crown argued that there was no violation of Mr. Reid’s Charter rights. It was the position of the Crown that if the court concluded the police violated one or more of Mr. Reid’s Charter rights, the evidence should not be excluded under s. 24(2) . [ 5 ] I have concluded that: • Mr. Reid’s rights under s. 9 were not infringed. The police had reasonable and probable grounds to arrest Mr. Reid. • Mr. Reid’s rights under s. 8 were infringed.

The issuing justice could not have issued the search warrant for the apartment where the evidence was found because the information to obtain (ITO), as amplified on review, failed to disclose reasonable and probable grounds to believe that evidence of a CDSA offence would be found at that location. • Mr. Reid’s rights under s. 10 (

b) were infringed. The specific circumstances of this case justified some delay in providing Mr. Reid access to counsel. However, the police did not take all reasonably available steps that could have reduced the length of the delay. • The admission of the evidence seized at the apartment would bring the administration of justice into disrepute. [ 6 ] My reasons for these conclusions follow. II. OVERVIEW OF THE INVESTIGATION [ 7 ] After receiving information from two confidential informants (CIs) about Mr.

Reid’s alleged drug trafficking activities, officers with the Guns and Gangs Task Force of the TPS commenced an investigation into Mr. Reid. During the course of this investigation, the officers obtained information from various police data bases. Prior to obtaining the search warrants, the officers conducted surveillance on Mr. Reid for a number of hours over a three-day period. [ 8 ] On January 30, 2018, search warrants were issued for the following locations: • Unit 407-60 Annie Craig Drive, Toronto;

• Basement apartment, 754 Broadview Avenue, Toronto; • Unit 1408-6 Eva Road, Toronto; and • a 2012 BMW with licence plate CCSE 159 (the “BMW”). [9] The first three locations were apartments. The police executed all of the warrants on January 30th. [10] The ITO was common to the four search warrants. [11] On January 30th, Mr. Reid (while shopping at a Mississauga aquarium store) was arrested for the offence of possession of aSchedule I substance for the purpose of trafficking. In keeping with the police investigative plan, Mr. Reid was arrested before thepolice executed any of the search warrants.

No controlled substances were found on Mr. Reid during a search incident to arrest. [12] Moments after his arrest, Mr. Reid was advised of his rights to counsel by Detective Robert Stolf. Detective Stolf was thesupervising officer of the police team investigating Mr. Reid. Mr. Reid responded that he wanted to speak with a lawyer. DetectiveStolf told Mr.

Reid that he would be given access to a phone to speak with a lawyer when he arrived at 22 Division. [13] During the execution of the search warrant at unit 407-60 Annie Craig Drive, police officers found a quantity of controlledsubstances, a loaded Smith and Wesson handgun, ammunition, cash and drug paraphernalia. The officers also located documentsbelonging to Mr. Reid and Sarah Lentinello. Some of these documents were addressed to Mr. Reid and Ms. Lentinello (jointly) at unit407-60 Annie Craig Drive. Mr. Reid was subsequently charged with various firearms and drug charges.

No controlled substances orweapons were located by the police at any of the other search locations. [14] The police first attempted to contact duty counsel on behalf of Mr. Reid approximately three and a half hours after he wasarrested. A telephone message was left for duty counsel after the police secured the last apartment for which a search warrant had beenissued. During this three and a half hour period Mr. Reid was not told why he was not being given an opportunity to speak with alawyer. He was also not told when he would be able to speak with a lawyer.

Duty counsel returned the message left by the police aboutfour hours after Mr. Reid had been arrested. III. THE APPLICATION [15] The four search warrants were based, in large part, on information provided by the two CIs. To protect the identities of theCIs, a significant amount of information contained in the ITO was redacted before it was provided to defence counsel. [16] At the outset of the Charter application, Crown counsel conceded that the redacted version of the ITO did not set outsufficient grounds to justify the issuance of the warrant.

The Crown brought a “step six” application to have the court consider theredacted portions of the ITO in relation to the Charter challenge: R. v. Garofoli, (SCC), [1990] 2 SCR 1421, at 1461; R.v. Crevier, 2015 ONCA 619. [17] I was provided a copy of the unredacted ITO and it was made a sealed exhibit on the application. Crown counsel prepared adraft judicial

summary of the redacted portions of the ITO. Over the course of a process that took several days, I had a number ofquestions for Crown counsel about the need for some of the proposed redactions. I also made suggestions about how greater detailcould be provided in the judicial

summary. On a number of occasions, Crown counsel agreed to provide additional information to thedefence. During this process, Crown counsel and I communicated in writing. Those written communications were sealed and made partof the record. [18] Ultimately, counsel for Mr. Reid was provided with a judicial

summary. After reviewing it, he made submissions on why, inhis view, it was insufficient to allow for a meaningful challenge. After considering these submissions, I had some additional commentsand questions for Crown counsel. Crown counsel agreed that additional information could be provided to the defence. That exchangewith Crown counsel was also in writing. Those communications were sealed and made part of the record. [19] Crown counsel consented to a limited cross-examination of Detective Constable Robert Black, who was the affiant of theITO.

Crown counsel also agreed to answer some additional questions posed by defence counsel regarding the redacted material. [20] In the end, counsel for Mr. Reid conceded that the defence had sufficient information to meaningfully challenge the search warrant: R. v. Rocha, 2012 ONCA 707, at para. 55; R. v. Reid, 2016 ONCA 524, at paras. 91-96.[1] [21] There were parts of the ITO which could not be summarized without compromising CI privilege. Both counsel agreed that inassessing the Charter arguments the court should not rely on the portions of the ITO which could not be summarized: Crevier, at para.87; R. v.

Muhammad, 2018 ONCJ 468, at para. 30. Where the contents of the ITO could be summarized, I have relied on the unredactedITO. [22] Crown counsel conceded that Mr. Reid had standing to make a s. 8 claim in relation to unit 407-60 Annie Craig Drive.[2] [23] In response to Mr. Reid’s claim that his rights under s. 10(

b) of the Charter had been violated, the Crown called DetectiveRobert Stolf as a witness. [24] Mr. Reid did not testify on this application. IV. THE CONTENTS OF THE ITO A. ITO: Appendices A and B

[ 25 ] In Appendix A of the ITO, Detective Constable Black described the items to be searched for, which included controlled substances, debt lists, cell phones, scales, drug packaging, drug paraphernalia, proceeds of crime, documents or other items “in relation to recent ownership, occupation, possession and association with both the search location and the property found within the search location.” [ 26 ] In Appendix B, Detective Constable Black stated that the search warrants were being sought in relation to an investigation into Adrian Reid being in possession of a

Schedule I substance for the purpose of trafficking. B. ITO: Appendix C [ 27 ] In Appendix C, Detective Constable Black provided an overview of the investigation, a description of the evidence to be searched for, background information about the target addresses and a description of his background and qualifications.

Detective Constable Black stated that in preparing the ITO he relied on information obtained from a number of sources, including other police officers, police computer reports and other database systems. [ 28 ] Detective Constable Black stated that two CIs had provided information to police about a man who was trafficking cocaine. TPS investigators identified Adrian Reid as the target of the investigation. [ 29 ] Detective Constable Black stated it was his belief that evidence of the offence of possession of a

Schedule I substance for the purpose of trafficking was currently located at the target locations. (i) “Database checks and information from other police forces” [ 30 ] Under the heading “database checks and information from other police forces”, Detective Constable Black summarized information that he obtained as a result of database checks and certain other investigative methods. This

summary included the following information: • Adrian Reid, “currently has a criminal record with police dating back to 1999 with 20 convictions of uttering threats x2, assault x 3, break and enter with intent, failing to comply with undertaking x 2, trespassing at night, failing to comply with probation order x3, theft under $5000 x 2, fail to comply with recognizance, fail to attend court x2, causing a disturbance, traffic in

schedule I x2 and assault with a weapon.” [3] • Adrian Reid is subject to a lifetime firearms prohibition following a trafficking cocaine conviction. • Adrian Reid, “has a G2 class Ontario Driver’s Licence with an address of 6 Eva Road unit 1408 as a home address. His licence has been suspended since December 15, 2016, for medical reasons and unpaid fines.” • Six Versadex reports involving Mr. Reid were submitted by TPS from July 24, 2014 to February 7, 2017. Detective Constable Black’s

summary of the Versadex reports included the following information: a. On October 24, 2014, Mr. Reid was with a male who was wanted for attempt murder. An off-duty police officer called 911. Uniform officers attended and placed the male under arrest for the warrant. The male was found in possession of a firearm and a quantity of narcotics. Mr. Reid was arrested but released upon further investigation at the station. Mr. Reid advised police that he had no fixed address. b. On May 21, 2015, Mr. Reid was issued a speeding ticket. Mr. Reid advised police that his address was unit 1809, 7 Capri Road, Toronto. c.

On February 12, 2016, Mr. Reid was issued a warning for failing to yield to a pedestrian. He was driving a silver BMW with Ontario licence plate BSND 247. Mr. Reid advised police that his address was unit 1809, 7 Capri Road, Toronto. d. On July 19, 2016, Mr. Reid was issued a warning for speeding. He was driving a silver BMW with Ontario licence plate BSND 247. Mr. Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto. e. On December 2, 2016, Mr. Reid was investigated by TPS for driving while impaired by drug at Lakeshore Boulevard and Parkside Drive. Mr.

Reid was transported by police to the hospital. Upon further investigation, Mr. Reid was released and was not charged. Mr. Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto. f. On February 7, 2017, Mr. Reid was stopped by police while driving a silver BMW with Ontario licence plate BSND 247. His driver’s licence was suspended at the time. The registered owner of the BMW, Sarah Lentinello, was notified of the stop. Mr.

Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto. [ 31 ] Detective Constable Black conducted a “Legacy Data” search on Adrian Reid, and summarized the information that he obtained as follows: • “On August 26, 2007, police investigated Reid at 7 Capri Road apartment 1809 for a domestic incident.

It was advised to police [sic] that Reid’s girlfriend and baby’s mother Kelly Dam born June 11, 1984 for constantly calling Reid’s cell phone and filling up his voicemail.” [ 32 ] Detective Constable Black conducted a Ministry of Transportation (MTO) query on Kelly Dam and obtained the following information: • Ms. Dam has a G class licence.

• Ms. Dam has a home address of unit 1408, 6 Eva Road. • Ms. Dam has one car registered in her name: a 2010 TSX with an Ontario licence plate CCYP 684. [ 33 ] Detective Constable Black conducted an MTO query on Ontario Licence Plate BSND 247 (which was attached to the silver BMW that Mr. Reid was driving when investigated by police in 2016 and 2017) and summarized the information that he obtained as follows: • The vehicle was registered to Sarah Lentinello born July 21, 1987. [ 34 ] Detective Constable Black conducted an MTO query on Sarah Lentinello and obtained the following information: • Ms.

Lentinello has a home address of 107 McCraney Street West, Oakville. She has a G class licence. Ms. Lentinello has two vehicles registered in her name: a. A 2012 blue BMW 5 series with an Ontario Licence plate CCSE 159. b.

A 1998 Chevrolet Cavalier with an Ontario Licence plate BDDX 951 (expired in 2010). [ 35 ] Detective Constable Black stated that another officer “conducted an investigative check where three parking tags were issued at 60 Annie Craig Drive in the late-night hours.” The ITO does not state the date when these tags were issued, which vehicle received the tags or when the officer conducted the “investigative check.” [ 36 ] Detective Constable Black stated that on January 29, 2018 he attended 59 Annie Craig Drive and spoke with “building management.” He also reviewed CCTV recordings.

Detective Constable Black watched a CCTV recording in which Mr. Reid and Ms. Dam, at approximately 10:07 p.m., entered an elevator from “P5” and walked off the elevator together on the fourth floor. Detective Constable Black did not state in this paragraph whether this elevator was in 59 Annie Craig Drive or in another building.

He also did not indicate the date when this recording was made. [ 37 ] Detective Constable Black stated that on January 29, 2018 Detective Constable Cory Dunk attended 6 Eva Road and spoke with “building management.” Detective Constable Dunk told Detective Constable Black that “Kelly Dam is registered to 6 Eva Road unit 1408.” (ii) Surveillance and Investigative Observations [ 38 ] Under the heading, “Surveillance and Investigative Observations”, Detective Constable Black summarized the observations that the police made over four days (January 26-29, 2018). [ 39 ] On Friday, January 26, 2018 , a police officer attended an underground parking that was used by the occupants of the condominium buildings at 59 and 60 Annie Craig Drive.

The officer located a blue BMW 5 series car with the licence plate CCSE 159 in “spot p5 spot 24”. [ 40 ] On Saturday, January 27, 2018 , members of the Guns and Gangs Task Force “set up in the area of 60 Annie Craig Drive to conduct surveillance.” The ITO describes the police surveillance on January 27 th as follows: • The blue BMW with Ontario marker CCSE 159 was located in the area . [4] • The vehicle was followed the downtown area [sic] where the vehicle stops at 37 Winchester. • The driver is confirmed by members as Adrian Reid. • Reid was north into a laneway that runs north from Winchester Street, west of Parliament Street. • ** the affiant speaks to building management of 59 and 60 Annie Craig Drive ** .

It was advised that the parking spot of P5 spot 24 is registered to Sarah Lentinello, 60 Annie Craig Drive unit 407 who is on the lease for the unit. The unit also has a storage locker registered to it with # 94. [5] • A short time later Reid exits the laneway and gets into the BMW and drives away with members following. • At 19:14 hours Reid is observed driving into a parking lot on the southwest corner of Bay Street and Elm Street.

Member observed what is believed to be a drug hand to hand exchange with an unknown male black. • The unknown male black is observed walking away from the car and opening the door to a Hyundai, reaching into the vehicle and closes the door. • The unknown male black proceeds to get into the front passenger [sic] of the BMW with Reid. • The BMW then exits the parking lot and drives to a Green P underground parking lot at Dundas Square. • Members attend the underground and locate the BMW unoccupied in the P4 level. • Approximately a half hour later the BMW exits the garage and drives to Bay Street and Elm where an unknown male black exits out of the rear passenger [sic] of the BMW.

• The BMW leaves the area and is followed to 50 St. Joseph Street (St. Basil’s Church) parking lot. • A few minutes later the BMW exits the lot. • The vehicle is misplaced at Wellesley Street and located ten minutes later at a gas station at 505 Jarvis Street. • Reid is observed by members sitting in the driver seat with an unknown male black in the passenger seat. • The BMW exits the gas station and is followed back to the St.

Basil’s Church. • Two minutes later the BMW is out of the lot and followed to Blue Jay way [sic]. • The vehicle is misplaced near Blue Jay way [sic] but located fifteen minutes later in a parking lot at Wellington Street and Blue Jay way [sic] unoccupied. • At 21:42 Reid is observed by members standing out front of 318 Wellington Street Soho Metropolitan Hotel with a female Asian, believed to be Kelly Dam and an unknown male black smoking. • Members observe Reid and possible Dam walk towards the lot where the BMW is parked. • They are both observed entering into the BMW and exiting the lot. • The BMW is followed to 60 Annie Craig Drive where the BMW drives down into the underground of the building. • Members check the underground a short time later and observe the BMW parked in P5 spot 24. [ 41 ] On Sunday, January 28, 2019, members of the Guns and Gangs Task Force attended 60 Annie Craig Drive and 6 Eva Road to locate Mr.

Reid and conduct surveillance. The ITO describes the police surveillance on January 28 th as follows: • The BMW with Ontario marker CCSE is located at 6 Eva Road in visitors’ lot spot V23. • At 18:49 the BMW exits the lot and is followed to 60 Annie Craig where the BMW pulls into the roundabout.

The vehicle sits there; no one approaches or exits the vehicle. • The BMW sits there for six minutes and pulls away and drives to 2200 Lakeshore Blvd. • The BMW sits in the front of a Starbucks running, no one approaches and no one exits the vehicle. • The BMW exits five minutes later and drives to the rear of 59 Annie Craig Drive. • The BMW parks next to a dodge ram pickup truck still running. • One minute later the BMW pulls out and drives around the corner and goes into the underground of 60 Annie Craig. • Approximately one hour later the BMW exits the underground and is followed to Danforth Avenue and Broadview Avenue. • The BMW is observed by members driving down a laneway between 752 and 754 Broadview. • Two minutes later Reid is observed wearing a backpack going into the A & W at 752 Broadview. • Reid is out a minute later with an A & W bag and walks down the same laneway and is out of sight. • Approximately two and a half hours later Reid is observed walking from 754 Broadview basement apartment and gets into the BMW and exits the laneway. • The BMW is followed back to Annie Craig Drive. • Surveillance was discontinued. [ 42 ] On Monday, January 29, 2019 , members of the Guns and Gang Task Force attended 6 Eva Road and located the BMW.

The ITO describes the police surveillance on January 29 th as follows: • At approximately 17:00 the BMW is located and is observed exiting a short time later. • The BMW is followed to a barber shop locate [sic] at 1878 Danforth “barber Lounge”. • Reid is observed exiting the shop and getting into the BMW. • The BMW is followed to 51 Winchester where Reid is observed exiting the vehicle and walking out of sight. • Reid was seen walking back to the BMW and placing a bag in the trunk. • Reid gets into the BMW and is followed to the underground of 60 Annie Craig Drive. • The BMW is parked in the visitor parking unoccupied.

• Members observed Reid with an unknown male black, afro pulled back, heavy build and black parka jacket with fur walking back towards the BMW. • Reid gets into his vehicle and the unknown male gets into a grey BMW. • Both vehicles roll out in tandem. • The grey BMW is misplaced. • Reid is followed to 754 Broadview Avenue where the BMW drives up the laneway and out of sight. • Members locate the BMW parked in the rear unoccupied. • Members observe Reid exiting out of the basement apartment of 754 Broadview Avenue and getting into the BMW. • Reid was followed back to 60 Annie Craig where he pulled into the underground parking. [ 43 ] Detective Constable Black included additional information in Appendix C, some of which he obtained during the course of this investigation and some was based on his experience as a police officer.

This additional information included the following: • “Reid has been observed driving in matter which not to be followed [sic] by unknown parties or police. Reid is also not driving a vehicle registered to his name and staying at one address registered to a female.” • “Stash houses are commonly used by drug traffickers to avoid police arrest and rival drug traffickers stealing or robbing their supply. The houses commonly are kept secret from police so search warrants cannot be obtained. They are used as safe places to keep money, drugs, guns and places to ‘lay low’ (avoid arrest or unwanted attention).

Stash houses are used as well to avoid rival drug traffickers stealing their full supply of narcotics and money.

Based on my experience on wire projects high end drug traffickers keep several stash houses and do not commonly keep any illegal substances in residences that police are aware of…Many drug traffickers will not keep anything in their name of fear [sic] of police finding them and seizing the items.” • “It is my opinion, based on my personal experience and in conversation with other officers, that narcotics are typically kept close to those who possess them and they seek to maintain control over them at all times.

This includes storage of the narcotics in areas directly controlled by the individual, such as homes, motor vehicles and storage lockers. For those reasons I believe the controlled substances to be in the possession of Adrian Reid that evidence of the possession of the narcotics, such as the narcotics itself, and the tools needed to assist them with their trafficking, such a scales, packaging, debt lists and cell phones will be found in the residences.” • “Adrian Reid has nothing registered to his name which makes me believe he does not want to be detected by police or rival drug dealers. Officers have source(

s) corroborating each other that Adrian Reid [redacted] trafficker.” The judicial

summary of the redacted portion of this sentence states that this descriptive detail relates to the level at which Mr. Reid was trafficking. • “I believe that Adrian Reid is a mid-level drug trafficker and has stash houses where he is keeping his narcotics. Adrian Reid has convictions of drug possession in the past and I believe he is currently doing so for his source of income. At no time have members seen Adrian Reid attend any form of work or employment during surveillance.” C. ITO: Appendix D [ 44 ] In Appendix D, Detective Constable Black summarized the information provided by the CIs and provided background information about the CIs. (

i) CI 1 [ 45 ] Detective Constable Black set out CI 1’s motivation for providing information to the police. [ 46 ] CI 1 was told that he or she would be charged with a criminal offence if they provided false or misleading information that resulted in a criminal investigation. [ 47 ] Under the heading “Reliability of the Confidential Source”, Detective Constable Black stated that CI 1 was a registered Confidential Human Source with the TPS.

Information provided by CI 1 had been “successfully used in the recent past.” [ 48 ] Detective Constable Black stated that information provided by CI 1 in the past was “proven to be very accurate and has been corroborated by police investigation.” In relation to one redacted part of the ITO, the judicial

summary states, “this

section contains details of an occasion within the previous year when the CS [CI] provided information that resulted in the seizure of contraband.” [ 49 ] According to Detective Constable Black, CI 1 was “vividly aware” of people who were involved in drug trafficking. [ 50 ] Detective Constable Black described the information provided by CI 1 at pages 37 and 38 of the ITO. He also indicated how some of CI 1’s information was corroborated by police. [ 51 ] The judicial

summary states that CI 1 provided information to the police within two months of January 30, 2018. The actual date was contained in the unredacted ITO. [ 52 ] CI 1 provided the police with information about a male by the name of “Adrian.” The introductory paragraph for this

section of the judicial

summary states, “whether or not the details provided by the CS [CI] are first-hand or second-hand are set out in the bullets below.” Additional details provided by CI 1 regarding Adrian are contained in the unredacted version of this paragraph in the ITO.

[ 53 ] CI 1 stated that “Adrian [redacted]” was a “male black, 6’2, medium build, beard with a round face.” Detective Constable Black corroborated this information by viewing an “Intellibook photo.” [ 54 ] CI 1 told police that “Adrian [redacted] BMW with tints”. Additional details regarding the BMW are contained in the in the unredacted ITO. Detective Constable Black stated that at least one aspect of this information was corroborated by police surveillance. [ 55 ] CI 1 told police that, “Adrian sells cocaine [redacted]”. An additional detail regarding this information is contained in the unredacted ITO. The judicial

summary states that the redacted information involves a detail with respect to the quantity of drugs sold by Adrian. [ 56 ] CI 1 provided police with personal information regarding “Adrian”. This information is contained in the first two paragraphs on page 38 of the ITO. Detective Constable Black stated that some of this information was corroborated during the course of the investigation. Much of this information, and the precise means by which some of the information was corroborated, has been redacted. [ 57 ] CI 1 provided police with a number of details regarding Adrian’s drug trafficking. Much of that information was redacted. The judicial

summary states that some of this information relates to “details about the manner in which he deals and the subject matter.” Detective Constable Black stated that some of this information was corroborated. Some of CI 1’s information regarding Adrian’s drug trafficking was not corroborated. The means by which the police corroborated information provided by CI 1 was, in some cases, redacted. [ 58 ] CI 1 told police how long he or she had known Adrian. That information was redacted.

Detective Constable Black did not state that the police had been able to corroborate that information. [ 59 ] Under the following three headings, Detective Constable Black provided an assessment of the information provided CI 1: (

i) compelling nature of the information provided by the confidential source; (ii) confirmation; and (iii) concluding overview in relation to the confidential source. One paragraph in this

section of the ITO begins as follows: “the information provided is compelling”. The rest of the paragraph has been redacted. The judicial

summary for the redacted portion of this paragraph states that: “The word ‘compelling’ as used in this paragraph does not relate to the factors a court is to consider as part of the Debot analysis.

In this section, the affiant was providing his opinion as to why this investigation is important for the community.” (ii) CI 2 [ 60 ] Detective Constable Black set out CI 2’s motivation for providing information to the police. [ 61 ] CI 2 was told that he or she would be charged with a criminal offence if they provided false or misleading information that resulted in a criminal investigation. [ 62 ] Detective Constable Black stated that CI 2 was a registered Confidential Human Source with the TPS and that information provided by CI 2 had been “successfully used in the recent past.” [ 63 ] Detective Constable Black stated that information provided by CI 2 in the past was “proven to be very accurate and has been corroborated by police investigation.” In relation to one redacted part of the ITO, the judicial

summary states that as a result of information provided by CI 2, “there have been seizures, charges and arrests on more than one occasion.” [ 64 ] According to Detective Constable Black, CI 2 was “vividly aware of members of the community involved in the drug trafficking element in the downtown area of the City of Toronto, and other areas in Ontario.” [ 65 ] The judicial

summary states that CI 2 provided information to the police within two months of January 30, 2018. The actual date was contained in the unredacted ITO. [ 66 ] Detective Constable Black described how some of CI 2’s information was corroborated by the police investigation. [ 67 ] CI 2 was shown an “Intellibook photo” of Adrian Reid by investigators. CI 2 said that the person in the photo was “Adrian.” [ 68 ] CI 2 told police that Adrian “deals in the downtown area.” Detective Constable Black stated that this information was corroborated by CI 1. [ 69 ] The judicial

summary states that redacted parts of the ITO contain details about whether the certain information provided by CI 2 was first-hand or second-hand. [ 70 ] Detective Constable Black described CI 2’s knowledge of “Adrian’s cocaine dealing.” Much of this information has been redacted. According to Detective Constable Black, at least one detail provided by CI 2 was corroborated by police surveillance. (iii) Judicial

Summary [ 71 ] I have already referred to portions of the judicial

summary. The judicial

summary also includes the following information: • The CIs did not tell the police that drugs could be found at unit 407-60 Annie Craig Drive or any other named address. • Both CIs said that they had observed Adrian Reid conducting drug deals. • The ITO discloses whether the CIs have a criminal record or outstanding charges. V. THE TESTIMONY OF THE WITNESSES

A. Detective Constable Robert Black [ 72 ] Detective Constable Black testified that during the course of the investigation he received information from Detective Constable Allan Racette that three parking tags were issued at 60 Annie Craig Drive for the BMW that was named in the ITO. In the ITO he did not state that the parking tickets were issued for the BMW.

Instead, the ITO states that Detective Constable Racette “conducted an investigative check where three parking tags were issued at 60 Annie Craig Drive in the late-night hours.” Detective Constable Black did not know the dates when the tickets were issued. [ 73 ] The ITO did not indicate when or where the BMW was first seen by police on January 27 th (other than it was observed “in the area” of 60 Annie Craig Drive). In cross-examination, Detective Constable Black testified that on January 27 th his team arrived at 60 Annie Craig Drive at 4:00 p.m. However, they could not find the BMW. [ 74 ] At 4:31 p.m.

Detective Constable Black saw the BMW at an Esso gas station located at 2189 Lakeshore Boulevard West. Detective Constable Black testified that this gas station was approximately 500 metres to 1000 metres from 60 Annie Craig Drive. Defence counsel asked Detective Constable Black why he did not indicate in the ITO that the BMW was not found by police at 60 Annie Craig Drive. Detective Constable Black provided the following answer: “I believe that the area of the gas station is one and the same area as 60 Annie Craig. That’s my opinion.

If you want to talk about this building [Old City Hall] I would say this building is in the area of the Eaton Centre Mall. Is it the actual or same address? No, but it is in the same area. That’s my

interpretation of area.” [ 75 ] Detective Constable Black testified that if a person was within “a walking distance” of a property he would describe that person to be “in the area” of that property. [ 76 ] Detective Constable Black testified that on January 27 th he spoke to the building manager for 60 Annie Craig Drive. Detective Constable Black asked the building manager for the apartment number and name of the person “associated to” parking spot P5-24. This was the parking spot where the BMW was observed on January 26 th .

The building manager told Detective Constable Black that this parking spot was connected to unit 407-60 Annie Craig Drive and that Ms. Lentinello was “on the lease for the unit.” Detective Constable Black asked the building manager if a male was living in unit 407. Detective Constable Black initially testified that the manager replied, “no”. However, Detective Constable Black later testified that he believed that the manager did not answer his question and, instead, said that the police would need a warrant to obtain this information.

Detective Constable Black explained that he could not remember exactly what the building manager said because he had not taken detailed notes about this conversation. The ITO does not mention that Detective Constable Black asked the building manager if a male lived in unit 407-60 Annie Craig Drive. B. Detective Robert Stolf [ 77 ] Detective Stolf testified that on January 30, 2018 it was the objective of the police to arrest Mr. Reid and then execute the four search warrants. [ 78 ] Including himself, there were seven police officers on Detective Stolf’s team.

As there were three apartments to search, he obtained the assistance of another team from the Guns and Gang Task Force. Detective Johnston was in charge of the second team. In total, including Detective Stolf and Detective Johnston, there were thirteen detectives or detective constables who were actively working on this investigation on January 30, 2018. [ 79 ] Detective Stolf testified that at approximately 4:33 p.m. he received information that the BMW had been located at 6 Eva Road. After receiving this information, the two teams conducted surveillance around that location.

Detective Stolf testified that at approximately 5:20 p.m. the BMW left 6 Eva Road and the police followed it to a store located at 850 Dundas Street East in Mississauga. The police did not identify the driver of the BMW until approximately 5:31 p.m., when Mr. Reid exited the car and entered the store. Police officers from both teams entered the store and arrested Mr. Reid. No contraband was located by police during a search of Mr. Reid incident to arrest. [ 80 ] Officers escorted Mr. Reid to a police vehicle located outside of the store. Detective Stolf told Mr. Reid that he was under arrest for possession of a

Schedule I substance for the purpose of trafficking. Shortly after 5:31 p.m. Detective Stolf advised Mr. Reid of his s. 10 (

b) rights. Mr. Reid indicated that he wanted to speak to a lawyer. Detective Stolf told Mr. Reid that when he arrived at the police station he would be given access to a telephone to speak with a lawyer. Detective Stolf then provided Mr. Reid with a statement caution. Mr. Reid indicated that he understood the caution. [ 81 ] Another officer provided Detective Stolf with a set of keys that had been located on Mr. Reid during the search incident to arrest. Detective Stolf showed Mr. Reid a copy of the search warrants and advised him about the scope of the investigation. Mr.

Reid was taken to 22 Division by two uniformed officers. [ 82 ] At approximately 5:43 p.m. police officers began to search the BMW. They completed the search of the car at about 6:00 p.m. [ 83 ] Detective Johnston’s team was assigned the responsibility of executing the search warrant at unit 1408-6 Eva Road. Detective Stolf’s team was responsible for executing the search warrant at unit 407-60 Annie Craig Drive. The search warrants for the first two apartments were to be executed simultaneously. [ 84 ] Detective Stolf testified that the search warrants could not be executed simultaneously on all three apartments.

He believed that thirteen officers would not be able to properly execute the three warrants simultaneously. He explained that as the investigative plan called for Mr. Reid to be arrested before any of the search warrants were executed, and since he did not know how long it would take to find Mr. Reid, he could not have three police teams on stand-by for an unknown period of time.

[85] Detective Stolf testified there were no other Guns and Gangs Task Force teams working that day. He testified that there is aprocess within the TPS for the supervisor of a team to request the assistance of additional officers for a specific purpose. However,Detective Stolf did not make a request for additional officers. He testified that as he did not know when search warrants would beexecuted, it would have been a “big ask” to have a third team of officers on stand-by for an extended period of time. [86] Detective Stolf testified that had the police executed the search warrants prior to Mr.

Reid’s arrest, Mr. Reid could havebecome aware of the investigation and discarded controlled substances that were on his person. [87] At 6:02 p.m. Detective Stolf left the Mississauga store where Mr. Reid had been arrested. He arrived at 60 Annie Craig Roadat 6:23 p.m. There were three other police officers with him. At 6:29 p.m. Detective Stolf unlocked the door to unit 407 using the keythat was found on Mr. Reid during the search incident to arrest. [88] The officers entered the one-bedroom apartment and found no one inside.

The officers searched the apartment and located theevidence that was previously mentioned. After the officers completed the search of this apartment Detective Stolf called DetectiveJohnston who advised that his team had completed the search of unit 1408-6 Eva Road. [89] Detective Stolf told his team that they would attend 754 Broadview to execute the final search warrant. Detective Stolf andhis team left 60 Annie Craig Drive at 7:43 p.m. [90] At approximately 8:40 p.m. Detective Stolf and his team arrived at 754 Broadview. The entrance to the apartment was locatedin a rear laneway.

There was a locked steel gate located in front of the door. Before attempting to break through the steel gate, thepolice contacted a female occupant of the apartment by phone. The occupant opened the door and the officers entered the apartment at8:45 p.m. Detective Stolf took a series of entry photos of the premises. He testified that it took about a minute to take thesephotographs. Detective Stolf then instructed his team to search the apartment. [91] At approximately 8:51 p.m. Detective Stolf made a telephone call to Detective Constable Dunk, who was at 22 Division.

Detective Stolf told Detective Constable Dunk that Mr. Reid should be advised that he would be facing additional charges for thecontrolled substances, firearm and ammunition located at unit 407-60 Annie Craig. Detective Stolf told Detective Constable Dunk thathe could “go ahead and facilitate the phone calls that Mr. Reid had requested.” [92] At 8:53 p.m. Detective Constable Dunk told Mr. Reid about his new charges. At 8:58 p.m. Detective Constable Dunk calledduty counsel on behalf of Mr. Reid and left a message. [93] Detective Stolf testified he decided to delay Mr.

Reid’s contact with counsel until the last apartment had been secured. WhenMr. Reid was arrested, he was not told that his s. 10(

b) rights were going to be suspended. [94] Detective Stolf testified that the decision to delay the implementation of Mr. Reid’s s. 10(

b) rights was based on concernsabout officer safety and the potential destruction of evidence. As this was a drug investigation there was a concern that evidence mightbe destroyed if occupants of the three apartments received advance information that the police were going to execute search warrants.

He also testified that, given the nature of this investigation, there was a heightened concern about officer safety and noted that officerscould be placed in harm’s way if the occupants of any of these locations knew that police officers were about to execute searchwarrants. [95] Detective Stolf testified that, based on developments in the law since January 2018, he would now advise an accused personat the time of arrest that his or her s. 10(

b) rights were going to be suspended. [96] Detective Stolf testified that the number of officers that are required to execute a search warrant is a case-specific issue. Hetestified that the fact that this was a drug trafficking investigation was a consideration in assessing how many officers would be requiredto execute these warrants. [97] Detective Stolf believed that, given the circumstances of this case, there was a reasonable basis to suspend Mr.

Reid’s right tospeak to counsel until all three apartments had been secured by police. [98] Detective Stolf testified that there was no “general policy” within the TPS to suspend an accused’s right to speak to counsel incircumstances where there are an insufficient number of police officers to simultaneously execute multiple search warrants. Instead, thedecision is made on a case-by-case basis. VI.

SECTION 9 A. Introduction [99] Mr. Reid argued that his s. 9 rights were violated because the police did not have reasonable and probable grounds to arresthim on January 30, 2018. B. The Relevant Law [100]

Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned.” A detention that isnot authorized by law is arbitrary: R. v. Grant, 2009 SCC 32 [2009] 2 SCR 353, at para. 54; R. v. Gerson-Foster, 2019 ONCA405, at para. 74. [101] Pursuant to s. 495(1)(

a) of the Criminal Code, a police officer is authorized to arrest a person without a warrant where the officer believes on reasonable grounds that the person has committed or is about to commit an indictable offence.[6] [102] An arresting officer must subjectively have reasonable grounds on which to base the arrest and those grounds must be

justifiable from an objective point of view: R. v. Storrey, (SCC), [1990] 1 SCR 241, at p. 251; Gerson-Foster, at paras. [103] A court can take into account an officer’s training and experience in assessing whether the officer had reasonable grounds toarrest: R. v. Wu, 2015 ONCA 667, at paras. 50-52. [104] When the grounds to arrest are based, at least in part, on information from a confidential informant, a court must consider “thetotality of circumstances to determine if the confidential information is sufficiently credible, compelling and corroborated to support thearrest”: R. v.

Chioros, 2019 ONCA 388, at para. 17; R. v. Debot, (SCC), [1989] 2 SCR 1140, at p. 1168. Weaknesses inone of these areas may be compensated by strengths in the other two: Debot, at p. 1168; Chioros, at para. 17. [105] When the police arrest a person under s. 495(1)(

a) for possession of a controlled substance for the purpose of trafficking, theremust be reasonable and probable grounds to believe that the person had committed or was about to commit this offence. However, thereis no requirement to establish reasonable and probable grounds to believe that the accused was in possession of drugs at the time of his orher arrest: R. v. Muller, 2014 ONCA 780, at para. 37. C. Discussion [106] Detective Stolf had reasonable and probable grounds to believe that Mr.

Reid had committed the offence of possession of acontrolled substance for the purpose of trafficking. [107] In arriving at this conclusion, I have considered the information provided by the CIs together with the investigation conductedby the police and applied the guidance provided by the Supreme Court in Debot. See also R. v. Richards, 2015 ONCA 348, at para. 43;R. v. Lewis (1998), (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.). [108] The information that Mr. Reid was selling drugs was compelling.

In assessing whether information is compelling a court mustconsider factors such as the degree of detail provided, the means of knowledge and whether the information that the CI provided wasbased on first-hand observations or second-hand observations. [109] In this case, the CIs told the police that they saw Adrian Reid sell controlled substances. This was first-hand knowledge. Bothprovided additional information about Mr. Reid’s drug trafficking. This information contained sufficient detail to support the conclusionthat it was not based on mere gossip or rumor.

Much of the information was specific and did not involve conclusory allegations. TheCIs’ information was not dated. [110] There was sufficient information in the ITO to conclude that the CIs were credible. Both CIs were registered human sourceswith the TPS. Both had a history of providing reliable information to the police. The ITO contained a detailed review of that history. The ITO revealed whether the CIs had a criminal record. The motivation of both CIs was also disclosed in the ITO.

Both CIs werewarned that if they would be charged criminally if they provided false information that resulted in a criminal investigation beingcommenced. [111] There was some independent corroboration of the CIs’ information that Mr. Reid was dealing drugs. On January 27, 2018, thepolice observed Mr. Reid involved in what appeared to be a hand-to-hand drug transaction. The police also corroborated otherinformation that was provided by the CIs. Some of the investigative steps taken by the police to corroborate the CIs’ information aboutMr. Reid is set out in the unredacted ITO. Mr.

Reid’s previous drug convictions, while dated, also provided some independentconfirmation of the CIs’ information: R. v. MacDonald, 2012 ONCA 244, at para. 22. [112] I am satisfied that the information provided by the CIs, who were reasonably credible sources, about Mr. Reid’s drug dealingwas sufficiently compelling and corroborated to support the conclusion that there were reasonable and probable grounds to believe thatMr. Reid had committed the offence of possession of a controlled substance for the purpose of trafficking. [113] Mr.

Reid’s arrest was lawful and there was no violation of his rights under s. 9 of the Charter. VII.

SECTION 8 A. Introduction [114] Counsel for Mr. Reid argued that the issuing justice could not have concluded, based on the amplified record, that there werereasonable and probable grounds to believe that evidence of Mr. Reid’s alleged drug trafficking would be found at any of theapartments. In advancing this argument, counsel for Mr.

Reid took the position that the ITO contained incorrect or misleadinginformation. [115] Crown counsel argued that the ITO did not contain misleading information and that the issuing justice could have concludedthat there were reasonable grounds to believe that evidence regarding drug trafficking would be found at unit 407-60 Annie Craig Drive. B. The Relevant Law [116]

Section 8 of the Charter provides that, “everyone has the right to be secure against unreasonable search or seizure.” (

i) Issuance of a Search Warrant [117] Before a search warrant may be granted the police must provide a justice with “reasonable and probable grounds, establishedupon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search”:Hunter v. Southam Inc., (SCC), [1984] 2 SCR 145, at p. 168. As Hill J. stated at para. 20 in R. v. Sanchez (1994), 1994

5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen.

Div.), an ITO must contain sufficient facts to establish reasonable grounds tobelieve three things: “…that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specified place.”[7] [118] In determining whether an ITO contains sufficient facts to establish reasonable and probable grounds, the issuing justice mustconsider the ITO as a whole, not one piece at a time because: “…each piece of evidence colours other pieces of evidence revealing a fuller and truer picture only through consideration of the evidenceas a whole”: R. v.

Prosser, 2016 ONCA 467, at para. 16. [119] The issuing justice must conduct this examination “in a practical, non-technical and common-sense basis”: Prosser, at para. 16.See also R. v. Sadikov, 2014 ONCA 72, at paras. 81-84. (ii) Reasonable and Probable Grounds [120] The reasonable and probable grounds standard is one of reasonable probability or credibly-based probability: Hunter v. SouthamInc., at p. 167. While more than a reasonable suspicion must be established, this standard does not require a prima facie case: Debot, atp. 1166.

To meet this standard, in the context of an application for a search warrant, there is no requirement to prove beyond areasonable doubt, or even on a balance of probabilities, that an offence has been committed and that evidence of that offence would befound at the time and place of the search: R. v.

Beauchamp, 2015 ONCA 260, at para. 92; Sadikov, at paras. 81-84. [121] While information received from a confidential informant may be relied upon to establish reasonable grounds to obtain a searchwarrant, a confidential informant does not have “to shoulder the entire burden” of establishing a reasonably grounded belief that evidencewill be found in the place proposed to be searched: Prosser, at paras. 13 and 17. [122] As I previously mentioned when dealing with the s. 9 claim, in deciding whether information provided by a confidentialinformant gives rise to reasonable grounds, a court must consider whether: 1) the information was compelling; 2) the source wascredible; and 3) the information was corroborated by police investigation: Debot, at p. 1168.

Weaknesses in one of these areas may, tosome extent, be compensated by strengths in the other two areas: Debot, at p. 1168; Rocha, at para. 16. [123] It is not necessary for the police to confirm every detail in an informant’s tip. While confirmation of “innocent” details is not asstrongly corroborative of an informant’s information as confirmation respecting the targeted criminality itself, there need not becorroboration of the very criminal act in issue for a confirmative detail to have probative value respecting the accuracy of an informant’sinformation: Lewis, at p. 490; Rocha, at para. 22; R. v.

Nero, 2016 ONCA 160, at para. 76. Indeed, “it is often impossible for the policeto obtain such confirmatory information about the ‘very criminality’ of what the CI has witnessed or knows”: R. v. Herta, 2018 ONCA927, at para. 38. [124] A target’s criminal record can be used to corroborate confidential information, particularly where it is recent and similar to thecriminal activity alleged by the confidential informant: R. v.

MacDonald, 2012 ONCA 244 at paras. 22-24; Beauchamp, at para. 113. [125] Officer training and experience may play an important role in establishing the existence of reasonable and probable grounds: R.v. MacKenzie, 2013 SCC 50 [2013] 3 SCR 250, at paras. 62-63. An issuing justice and a reviewing justice are entitled to relyon the opinion of an affiant about “the practices of drug dealers in connection with the storage of drugs, firearms and assortedparaphernalia”: Prosser, at para. 18.

However, courts are not required to uncritically accept or defer to a police officer’s conclusion thatis grounded in his or her experience and training: MacKenzie, at para. 64. (iii) Reviewing the Validity of a Search Warrant [126] The review of the validity of a search warrant begins from a presumption that the warrant is valid: R. v. Pires; R. v. Lising, 2005SCC 66 [2005] 3 SCR 343, at para. 30; Beauchamp, at para. 85. The presumption is rebuttable: Nero, at para. 68. The onus ison the accused to establish that the ITO is insufficient: R. v.

Campbell, 2011 SCC 32 [2011] 2 SCR 549, at para. 14; Sadikov,at para. 83. [127] A review of a search warrant is not an “exercise in examining the conduct of the police with a fine-toothed comb, fastening ontheir minor errors or acts or omissions”: R. v. Nguyen, 2011 ONCA 465, at para. 57. The draftspersons of ITOs are police officers, notlawyers. An ITO is not held to the same standard as is applied to documents prepared by counsel: R. v. Adansi, 2008 ONCJ 144 at para.33; R. v. Baldwin, (ON SC), at para. 38; R. v. Brown, 2011 ONSC 6223, at para. 15.

To be clear, “perfection indrafting an ITO is not a constitutional standard”: Baldwin, at para. 38. Perfection is not the standard against which I have evaluated theITO. [128] In this case, the defence advanced a sub-facial challenge to the warrant. In R. v.

Paryniuk, 2017 ONCA 87 at para. 77, Watt J.A. stated that a sub-facial challenge, “turns on what the affiant knew or ought to have known when the ITO was sworn.”[8] In R. v.Lakan, 2018 ONSC 3649, at para. 71, Hill J. observed that a sub-facial challenge, “is for the accused to go behind the ITO to attack thereliability of its content.” [129] The role of a judge reviewing the validity of a search warrant is limited. The review is not a hearing de novo and the reviewingcourt cannot substitute its own view for that of the issuing justice: Nero, at para. 69.

The narrow scope of a reviewing judge’s task wasdescribed by Watt J.A. in Sadikov, at para. 88: The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.” [Emphasis in original][9]

[130] 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”: Beauchamp, at para. 88.

Errors or omissions in an ITO, whether fraudulent or inadvertent,are, on their own, not a sufficient basis to find bad faith or set aside a warrant: Nero, at para. 72; Sadikov, at para. 87. [131] While the existence of fraud, non-disclosure, misleading evidence and new evidence are relevant to the review of the searchwarrant, their impact is to determine whether – after the offending portions of the ITO are excised and after relevant amplification – therecontinues to be any basis for the decision of the issuing judge: R. v. Araujo, 2000 SCC 65 [2000] 2 SCR 992, at paras. 51-60; Garofoli, at p. 1452; R. v.

Hafizi, 2016 ONCA 933, at para. 44.[10] [132] A reviewing judge must “exclude erroneous information” from an ITO: Araujo, at paras. 56-58. [133] Where the police fail to discharge their duty to fully and frankly disclose material facts, a reviewing judge must use the evidenceadduced at the voir dire “to fill the gaps in the original ITO”: R. v. Morelli, 2010 SCC 8 [2010] 1 SCR 253, at para. 60. Seealso R. v. Booth, 2019 ONCA 970, at para. 59. [134] An issuing justice and a reviewing justice are entitled to draw reasonable inferences from the contents of an ITO: Nero, at para.71.

An affiant need not underline the obvious: R. v. Vu, 2013 SCC 60 [2013] 3 SCR 657, at para. 16. [135] A reviewing court must conduct the review on “a contextual analysis, not a piecemeal approach to individual items of evidenceshorn of their context in a vain search for alternative exculpatory inferences”: Nero, at para. 68.

A reviewing judge must remember that“if the inferences of criminal conduct and recovery of evidence are reasonable on the facts as disclosed in the ITO, the warrant could beissued”: Sadikov, at para. 81. (iv) Duty to Make Full, Frank and Fair Disclosure [136] It is “imperative that issuing judges or justices have an accurate understanding of the material, known facts available to theaffiant officer”: Booth, at para. 54. To ensure accuracy, there is a legal obligation on an affiant to an ITO to make “full and frankdisclosure of material facts”: Araujo, at para. 46.

See also Booth, at para. 54. [137] An affiant must present all material facts, favourable or not: Morelli, at para. 58. Indeed, “a search warrant affiant bears theburden of presenting the facts accurately and fairly, from the perspectives of both sides”: Booth, at para. 54 [Emphasis added]. [138] An affiant must “avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or aconclusion that would not be reached if the omitted facts were disclosed”: Morelli, at para. 58.

See also Booth, at para. 55. [139] An ITO should “never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officermust not ‘pick and choose’ among the relevant facts in order to achieve a desired outcome”: Booth, at para. 55. See also Morelli, at para.58. [140] An incomplete or unclear statement should not be included in an ITO “when a clearer statement could easily have been drafted”:Rocha, at para 35.

In Rocha, at para. 35, the Court concluded that an unnecessarily unclear statement in an ITO which had the potentialto, even unintentionally, mislead the justice of the peace was a “serious matter” because it “effectively deprives the judicial officer of theability to independently assess the sufficiency of the ITO.” [141] In R. v.

Nguyen, 2017 ONSC 1341, at para. 49, Fairburn J. (as she then was) noted that an affiant is under an obligation todisclose “material facts”, and stated, “material non-disclosure involves that which bears on the substance of a warrant application.” [142] In Booth, the Court of Appeal recently addressed the question of what is “the frame of material information required to achievefull and frank disclosure?” At para. 56 Paciocco J.A. stated that it includes: “…all material information that: (

a) could undercut the probability that the alleged offence has been committed; (

b) could undercut theprobability that there is evidence to be found at the place of the search; and (

c) that challenges the reliability and credibility of theinformation the affiant officer relies upon to establish grounds for the warrant.” [Emphasis added] [143] As previously noted, when “material information that would hinder a finding of reasonable and probable grounds has beenimproperly omitted, the ITO must be amplified to include it”: Booth, at para. 59. See also Morelli, at para. 60; World Bank Group v.Wallace, 2016 SCC 15 [2016] 1 SCR 207, at paras. 121-122. The reviewing court must then “determine based on thatcorrected ITO whether the warrant could properly have issued if full and frank disclosure had been made”: Booth, at para. 57. C. Discussion (

i) The Omitted Information Was Material [144] The ITO did not disclose that the first time the police saw the BMW on January 27th was at 4:31 pm at a gas station located upto one kilometer from 60 Annie Craig Drive. [145] In my view, the omission of this information made the grounds appear stronger than they actually were. The time and locationof this observation was important in determining whether there were reasonable and probable grounds to believe that evidence would befound at unit 407-60 Annie Craig Drive. To this point in the investigation, Mr. Reid had never been seen at 60 Annie Craig Drive.

Without this information, the issuing justice would not have known that the BMW was up to a kilometer from 60 Annie Craig Drivewhen the police found it. Without this information, the issuing justice would not have known that close to three hours elapsed from thetime the police first located the BMW at the Esso gas station to the time of Mr. Reid’s involvement in what appeared to be a hand-to-hand drug transaction. While the ITO provides very little information about what occurred between 4:31 p.m. and 7:14 p.m., it is clear atsome point during this period, Mr.

Reid entered a laneway and, it appears, the police lost sight of him for an unknown period of time.

[ 146 ] In my view, the omitted information was material and undercut the probability that evidence would be found at unit 407-60 Annie Craig Drive . (ii) Corrected ITO [ 147 ] Having heard the affiant testify, I am of the view that the deficiencies in the ITO were not intentional.

It would not be appropriate to remedy the ITO’s deficiencies by relying on the court’s residual discretion to set aside the warrant, as there was no deliberate non-disclosure, bad faith, deliberate deception or fraudulent misrepresentation. [ 148 ] In determining whether the warrant could have issued, the ITO must be corrected to include the omitted material information. (iii) Review of Selected Cases [ 149 ] Whether an ITO contained reasonable grounds upon which a court could have issued a search warrant is a “fact-specific determination in each case”: R. v. Ngo , 2011 ONSC 6676 , at para. 35 .

Nonetheless, it might be helpful to review some selected cases. [ 150 ] Crown counsel argued that R. v. Soto , 2010 ONSC 1734 (Ont. S.C.J.) affirmed 2011 ONCA 828 , provided support for the argument that the ITO, as amplified on review, contained sufficient facts to establish reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive. In my view, the factual circumstances in Soto are fundamentally different from the facts in this case. [ 151 ] In Soto , a confidential informant told the police that the accused was trafficking cocaine.

The confidential informant also provided the police with the accused’s address. The police set up surveillance on the accused’s apartment building. The police watched the accused leave the apartment building and enter the passenger side of the car. The police followed the car after it pulled away from the apartment building. A few minutes later, the car pulled over on two occasions and the police saw what they believed to be hand-to- hand drug transactions on the passenger side of the car.

The police maintained constant surveillance on the accused from the time he left his apartment building until the second suspected hand-to-hand drug transaction. The police relied upon the information provided by the CI and the police surveillance to obtain a search warrant for the accused’s apartment. [ 152 ] In finding that there were reasonable and probable grounds to believe that evidence would be found at the accused’s apartment, the trial judge concluded: “Officer Taylor’s information was that Mr. Soto was dealing cocaine. He saw Mr.

Soto leave the building, get into the car, and then, as the ITO sets out, he and Officer Fitkin each observed what they believed to have been two hand-to-hand drug transactions. (That is, they each saw one.) As Mr. Soto had not stopped anywhere else along the way before these transactions, it is reasonable to believe that he would have had the drugs on his person when he left the apartment .” [11] [ 153 ] The Court of Appeal cited the above passage from the trial judge’s reasons and stated as follows at para. 5: “In our view, this reasoning is sound.

In particular, the emphasized passage speaks to an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence. ” [Emphasis added] [ 154 ] The Court of Appeal also adopted the following reasoning of the trial judge at para. 10: “At the end of the day, the point is that there were reasonable and probable grounds in the circumstances to think that Mr.

Soto had drugs on his person when he left 11 Catford Road and got into the Lincoln, and a reasonable inference that, as a dealer, he would have a supply in his apartment .” [Emphasis added] [ 155 ] In the case at bar, the police did not see the target of this investigation engage in a suspected drug transaction immediately after leaving his apartment building. There is no reasonable basis to conclude Mr. Reid left 60 Annie Craig Drive and drove directly to the gas station. Finally, unlike the facts in Soto , it appears that the police lost sight of Mr. Reid before the suspected drug transaction.

The facts in this case are clearly distinguishable from the facts in Soto . [ 156 ] Crown counsel also relied on R. v. Chin, 2015 ONSC 4323 . In Chin , the accused argued that there was an insufficient basis in the ITO to authorize a search of his residence. As a result of intercepted conversations, police believed that the accused was a supplier of drugs to another drug trafficker. Information in the ITO suggested that the accused had supplied cocaine to a middleman on two specific occasions and, on both occasions, returned home after the drug transactions occurred.

McKelvey J. concluded that it was reasonable to believe that evidence of a CDSA offence would be located at the accused’s residence. This conclusion was based, at least in part, on the fact that the intercepted conversations and surveillance established reasonable and probable grounds to believe that the accused had, on two occasions, trafficked cocaine and, after completing the transactions, drove back to his “known residence.” [ 157 ] The facts in the case at bar differ from the facts in Chin .

For at least two and a half hours after the suspected drug transaction, and prior to driving to 60 Annie Craig Drive, Mr. Reid attended a number of locations. During this period, the police lost contact with the BMW and Mr. Reid. In Chin , the search warrant was issued for Chin’s “known residence.” In the case at bar, while there was evidence in the ITO that could support the conclusion that Mr. Reid was residing at unit 407-60 Annie Craig Drive, in my view, it would be an overstatement to describe this apartment as Mr.

Reid’s “known residence.” [12] [ 158 ] Some guidance regarding the central question on the s. 8 application may be found in R. v. Le , 2014 BCCA 166 and R. v. Prosser , 2016 ONCA 467 . [13] In both cases, the issue was whether an ITO contained a sufficient basis to conclude that there were reasonable and probable grounds to believe that evidence would be found at a specific location. [ 159 ] In Le, the British Columbia Court of Appeal concluded that while the ITO raised a suspicion that a link existed between drug

trafficking and the appellants’ apartment, it did not establish that there were reasonable and probable grounds to believe that evidence would be found at this apartment. [ 160 ] In Prosser , the Ontario Court of Appeal found that the facts in Le were distinguishable and concluded that the ITO established a credibly based probability that evidence would be found in an apartment occupied by the appellant. [ 161 ] In my view, the ITO in this case (as amplified on review) is more similar to the Le ITO than the Prosser ITO. [ 162 ] In Le, the appellants were convicted at trial of possession of a controlled substance for the purpose of trafficking.

In the Le ITO, the affiant deposed that there were reasonable and probable grounds to believe that the two appellants (Le and Liu) and Petros Soiles were trafficking controlled substances. Four CIs told the police that Soiles was trafficking drugs on behalf of Le. One CI told police that Le and Liu and were providing cocaine to Soiles for the purposes of trafficking. An anonymous phone caller told police that a Vietnamese man named Michael and an Asian woman named Coco were selling cocaine at the kilogram level.

The anonymous caller also indicated that Le and Liu lived in an apartment building that police later identified as “McKay Avenue”. Police saw Soiles meet with four known street-level drug dealers. The affiant deposed that these meetings were consistent with drug trafficking activity.

Soiles was also observed to frequently enter and exit his apartment at “Regiment Square”, in a manner that the affiant deposed was consistent with drug trafficking activity. [ 163 ] Over a four-week period, on nine occasions, police observed one or both of the appellants drive into the Regiment Square parking garage (using a fob associated with Soiles’ apartment) and enter Soiles’ apartment. Each time, they only stayed a short while. [ 164 ] Police obtained search warrants for Soiles’ apartment at Regiment Square and the appellants’ apartment on McKay Avenue.

The search of the McKay Avenue apartment resulted in the seizure of a significant amount of drugs. [ 165 ] The British Columbia Court of Appeal stated at para. 41: “… there was overwhelming information that Soiles was trafficking in drugs; there was also information from which, without difficulty, the police could conclude that there were reasonable grounds to believe that Le and Liu were trafficking in drugs with Soiles.

The more difficult question is whether there existed a reasonable basis to believe that evidence of drug trafficking would be found at Le and Liu ’s residence on McKay Avenue . ” [Emphasis added] [ 166 ] The Crown argued that the ITO provided a reasonable basis to infer that the appellants used their home to store drugs.

The Crown acknowledged that “reliable information that an individual is trafficking in drugs is not, without more, sufficient to justify a search of his or her home.” [14] However, the Crown argued that “by the process of elimination the drugs had to be” at the appellants’ residence. [ 167 ] The Court of Appeal found it was significant that, despite frequent surveillance of the appellants and tracking devices on their vehicles, the appellants were never observed travelling directly from their McKay Avenue apartment to Soiles’ apartment on Regiment Square. [ 168 ] In concluding that the trial judge erred in holding that the search warrant for the McKay Avenue apartment had been properly issued, the Court of Appeal found, at paragraph 45, that the totality of circumstances, including the number of times the appellants attended at the Regiment Square apartment, “does not lead to a credibly based probability that the drugs were coming from McKay Avenue.” [ 169 ] The Court of Appeal observed, at paragraph 45, that there was “a gap in the information as to the appellants’ point of origin prior to their alleged delivery of drugs to Regiment Square.” In the end, the Court of Appeal concluded, at para. 45, that the amplified ITO contained “nothing more… than supposition that the drugs were originating from McKay Avenue.” [ 170 ] In Prosser , the appellant was convicted at trial of firearm, proceeds of crime and drug offences.

Guns, money and drugs were found by police during the execution of a search warrant at an apartment occupied by the appellant. On appeal, counsel for the appellant argued that the Ontario Court of Appeal should “follow the lead of the British Columbia Court of Appeal in R. v.

Le ” and find that the trial judge erred in concluding that the ITO provided a proper evidentiary basis upon which the court could conclude that there were reasonable and probable grounds to believe that evidence would be found at the appellant’s residence. [ 171 ] In dismissing the appeal, the Court of Appeal acknowledged that while there was a factual similarity between the two cases, the cases were factually distinguishable. In Prosser , two CIs provided information to the police that the appellant was in possession of a firearm and drugs at his apartment building.

The CIs provided the address of the apartment building to the police but did not tell the police the exact apartment in which the appellant resided. The police were able to determine the appellant’s apartment based on further investigation.

During the Charter application, it became clear that neither CI had provided first-hand information about drug dealing or firearms in the appellant’s apartment. [ 172 ] The Ontario Court of Appeal, at paragraph 17, found that the CI information, when considered with the rest of the ITO, “…was sufficient to establish a reasonably grounded belief that the evidence sought would be found in place of the proposed search.” [ 173 ] Significantly, the ITO in Prosser contained information that connected the alleged drug trafficking to the premises that the police sought to search.

In addressing the CI information in the Prosser ITO, the Court of Appeal at paragraph 17 concluded as follows: “This information distinguishes this case from Le where the ITO contained no information that linked the drug dealing to the address of the accused, the premises police sought to search under the warrant.” [ 174 ] In the case at bar, the CIs did not tell the police that Mr. Reid was in possession of drugs at his apartment building. There was no clear connection between unit 407-60 Annie Craig Drive, Mr. Reid and the commission of the suspected offence on January 27 th .

[ 175 ] The ITO in Prosser included opinion evidence from the affiant regarding practices of drug traffickers in relation to the storage of drugs and related evidence. The Court of Appeal concluded, at paragraph 18, that the issuing justice and the reviewing justice were entitled to rely upon this evidence. [ 176 ] In the case at bar, the ITO included Detective Constable Black’s opinion that he believes evidence of Mr.

Reid’s drug offences would be found in the locations named in the ITO because, in his experience, drugs are often stored in “areas directly controlled by the individual, such as homes, motor vehicles and storage lockers.” [ 177 ] As previously noted, officer training and experience can play an important role in determining whether the reasonable grounds to believe standard has been met: MacKenzie , at para. 62 .

In some circumstances, it would be open to a court to find based on opinion evidence of this nature, considered together with other information in an ITO, that there were reasonable and probable grounds to believe that evidence would be found in the premises to be searched. [ 178 ] However, in my view, this is not such a case. Reasonable grounds to believe is an objective standard that must “stand up to independent scrutiny”: MacKenzie , at para. 64 . [ 179 ] In R. v. Aboukhamis , 2015 ONSC 2860 , the police obtained a CDSA search warrant for a residence.

Inside and around the residence police found controlled substances and a digital scale. The accused was charged with possession of a controlled substance for the purpose of trafficking. The accused brought an application to exclude the evidence based on a s. 8 breach. The ITO contained a police officer’s opinion that drug dealers often “keep their drugs with them in their vehicles and their residences or the residences they use to sell the drugs.” Grace J. found that the search warrant was invalid as it failed to establish reasonable grounds to believe that evidence would be found in the residence.

In my view, the following conclusions of Grace J., at paras. 36, regarding the opinion evidence in that case apply with equal force to Detective Constable Black’s opinion evidence: “The paragraph contains a generalized statement about the propensity of those engaged in drug trafficking.

Without some case-specific evidentiary support, it seems to me to be of little, if any, value.” [15] (iv) Conclusion [ 180 ] As I previously noted, an ITO must state investigative facts sufficient to establish reasonable grounds to believe three things: 1) that an offence has been committed; 2) that the things to be searched for will afford evidence; and 3) that the things in question will be found at the place of the proposed search. [ 181 ] I will quickly deal with the first and second requirements. In addressing the s. 9 claim, I concluded that the police had reasonable and probable grounds to believe that Mr.

Reid had committed the offence of possession of a controlled substance for the purpose of trafficking. The factual basis for that conclusion was contained in the ITO, as amplified on review. [16] [ 182 ] Turning to the second requirement, based on Appendix A, there can be no doubt that the items the police were searching for would have afforded evidence in this case. [ 183 ] The first and second requirements have been satisfied. [ 184 ] Turning to the third requirement.

In deciding whether the issuing justice could have concluded that there were reasonable and probable grounds to believe that evidence of a CDSA offence would be located at unit 407-60 Annie Craig Drive, I must consider the ITO, as amplified on review, as a whole. [ 185 ] It may be helpful at this point to briefly review what was and was not in the ITO, as amplified on review: [ 186 ] The amplified ITO does not establish a reasonable nexus between Mr. Reid, a drug offence and unit 407-60 Annie Craig Road. The record does not provide a reasonable basis to infer that on January 27 th Mr.

Reid took evidence of a CDSA offence to, or kept evidence of a CDSA offence at, unit 407-60 Annie Craig Drive. [ 187 ] When viewed through the lens of a reasonable person (with the experience and training of Detective Constable Black), the ITO, as amplified on review, considered as a whole , fails to satisfy the reasonable and probable grounds to believe standard.

At most, it establishes that there may have been grounds to suspect that evidence of a CDSA offence would be found at unit 407-60 Annie Craig Drive. [ 188 ] I am not satisfied that based on the amplified ITO the issuing justice could have concluded that there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive. [ 189 ] Mr. Reid’s s. 8 rights were violated as a result of the issuance and execution of an invalid warrant to search unit 407-60 Annie Craig Drive. VIII.

SECTION 10(

b) A. Introduction [ 190 ] Before turning to the substance of the s. 10 (

b) claim, I must first address a preliminary matter. There was no causal connection between the alleged s. 10 (

b) breach and the seizure of any evidence b

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