2019 QCCQ 2805, 2019 QCCQ 2805

Casale c. R. 2019 QCCQ 2805 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL “Criminal and Penal Division” Nos: 500-01-156779-172 500-01-156769-173 DATE: May 8, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Steve CASALE Petitioner (Accused) v. HER MAJESTY THE QUEEN Respondent (Prosecutor) ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR THE EXCLUSION OF EVIDENCE OBTAINED IN VIOLATION OF

SECTION 8 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ INTRODUCTION [ 1 ] On June 13, 2017, a search warrant was granted authorizing a search of Applicant’s home situated at 3488 rue de Commandant in Laval. The search was executed and the police seized a loaded handgun (hereinafter: a Beretta) and 17 grams of hashish. [ 2 ] Applicant was arrested and charged with being in possession of a loaded prohibited firearm (

article 95 of the Criminal Code ), unauthorized possession of a firearm (

article 91 of the Criminal Code ) and possession of a controlled substance (article 4(1)(4)(

b) of the Controlled Drugs and Substances Act ). [ 3 ] Applicant was also charged jointly with Francesco Catalano with being in possession of a concealed weapon and a loaded prohibited firearm (a Kel-Tec Model P-11). Such weapon was found on the person of Mr. Catalano at the time of both of their arrests. The theory of the police is that Casale directed Catalano to carry a gun for him when they were out together [1] . [ 4 ] Alleging a violation of

section 8, the present Application seeks the exclusion from evidence of the Beretta and the hashish seized from Applicant’s home, on the basis that there were insufficient grounds for the issuance of the search warrant. [ 5 ] Applicant will also be presenting an Application to exclude the Kel-Tec from evidence on the basis that he was unlawfully arrested in violation of

section 9 of the Charter . THE ITO [ 6 ] Annex A of the information to obtain (hereinafter: “ITO”) sets out the reasonable grounds for the affiant to believe that evidence with respect to offenses pursuant to sections 95 (hereinafter: “possession of illegal weapons”) and 347 of the Criminal Code (hereinafter: “loan sharking”) have been committed and that evidence of such crimes can be found at Applicant’s home situated at 3488 rue du Commandant. [ 7 ] The affiant is a Detective Sergeant with the violent crimes unit of the Service de Police de la Ville de Montréal (SPVM).

She has been employed by the SPVM since May 2007. The ITO was signed on June 13, 2017. [ 8 ] Annex A is a 19 page document. At paragraph 1, the affiant indicates that the facts presented in the document are based on her personal knowledge and on information she considers true. [ 9 ] The ITO contains information that was obtained from a coded confidential informant (referred to in the ITO as Source A, hereinafter: “the CI”), research in various databanks accessible to the police, and surveillance operations carried out by the police. [ 10 ] Some of the surveillance was videotaped.

Such videos were viewed by Detective Sergeant Marc-André Dubé, who, according to the affiant, has been qualified as an expert witness in firearms in six weapons files [2] . Detective Sergeant Dubé analysed 46 video segments with a view to demonstrating that Francesco Catalano was armed. [ 11 ] The affiant also states that the videos and surveillance confirm that on multiple occasions, Catalano was acting so as to protect [3]

Casale [4] .

APPLICANT’S POSITION [ 12 ] There are three interrelated prongs to Applicant’s position regarding the insufficiency of the grounds included in the ITO. [ 13 ] First, Applicant submits that the tips received from the CI were unreliable, in that the information provided was neither compelling, credible nor corroborated. [ 14 ] Second, Applicant argues that the ITO fails to establish a sufficient nexus between the alleged offenses and the place to be searched, namely, his home. [ 15 ] Finally, Applicant takes issue with the absence of conclusory statements tying together all of the information set out in the ITO.

In the circumstances of this particular ITO, Applicant pleads that this was necessary in order to explain why the information gives rise to reasonable grounds. ISSUES

(1) Does the ITO contain sufficient information regarding the confidential informant to enable the authorizing Justice to place weight on the information provided?

(2) Does the ITO contain sufficient information to enable the authorizing Justice to have reasonable grounds to believe that evidence of the alleged offenses could be found at Applicant’s residence ?

(3) Did the failure of the affiant to include conclusory statements setting out the police theory of the case prevent the authorizing judge from being satisfied as to the sufficiency of the grounds set out in the ITO? THE LAW [ 16 ] A search warrant is presumptively valid [5] . The role of a judge reviewing the issuance of a search warrant is limited. She does not substitute her opinion for that of the authorizing judge.

She does not review the authorization de novo [6] . [ 17 ] The reviewing judge must determine whether there was “reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” [7] .

As explained by the honourable Justice Fish in Morelli “[t]he question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offense had been committed and that evidence of that offense would be found at the specified time and place” [8] . [ 18 ] In order to establish reasonable grounds for a search, the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “ prima facie case” [9] .

This standard has also been described as credibly-based probability [10] , which exceeds suspicion but falls short of a balance of probabilities [11] . [ 19 ] In its evaluation, the reviewing judge must “take into account the totality of the information, interpreting its constituent parts in context” [12] .

A holistic, common sense approach is to be adopted. [ 20 ] The reviewing judge must also recognize the power of the issuing judge “to draw reasonable inferences from explicitly stated evidence”: It is settled law that the issuing judge is fully empowered to make all reasonable deductions which flow logically from the evidence stated in the Information, and this power must be factored into the review process. [13] [ 21 ] Evidence may support more than one inference. In such cases, it is not the reviewing judge’s role to prefer one inference over the other.

The Court of Appeal of Ontario explained this as follows: The task of the reviewing judge is to assess whether the ITO contained reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: Sadikov , at para. 88 . Although a potentially innocent explanation cannot be disregarded and may, in a proper case, make an inculpatory inference reasonably unavailable, a reviewing judge should not examine individual items of evidence out of context in a search for alternative exculpatory inferences: R. v.

Liew , 2015 ONCA 734 , 341 O.A.C. 192, at para. 46 ; Nero , at paras. 68 and 70 . [14] [ 22 ] However, the difference between conjecture and inference must always be kept in mind: The first is not a reliable fact finding tool for the simple reason that it does not rest upon a compelling evidentiary foundation. As such, it has no place in judicial decision-making. The second is the product of a time-honoured fact-finding process. This process involves the extraction of a logical conclusion from cogent evidence.

As such, it is unquestionably a reliable weapon in the judicial fact finding arsenal. [15] [ 23 ] Also, conclusory statements without supporting evidence are to be avoided [16] , and are insufficient to justify the issuance of a

search warrant [17] . [ 24 ] At the same time, ITOs should not simply provide chronological information without drawing links or connections to the authorizing Justice’s attention. ITOs must be drafted as clearly and concisely as possible in order to enable the issuing Justice to truly understand and assess the basis put forward by the affiant as to the existence of reasonable grounds [18] . [ 25 ] When information from informants is relied on to obtain an authorization to search, there are special requirements. These have been set out in Garofoli [19] as follows: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto , provide evidence of reliability of the information. [ 26 ] Briefly stated, in order to determine whether the confidential informer’s tips achieves the constitutional minimum of reliability, the information should be compelling, credible and corroborated [20] . [ 27 ] The reviewing judge must decide “whether there was some evidence that might reasonably be believed to support the issuance of the warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity” [21] . [ 28 ] Ultimately, the burden is on the Applicant to prove that the issuing Justice should not have authorized the warrant, in that the minimum standard required for authorizing the search was not established in the ITO [22] .

APPLICATION First issue: The CI Credible [ 29 ] Applicant argues that the ITO does not contain enough evidence to enable the issuing judge to assess the CI’s credibility. He takes issue with the fact that the ITO does not provide any information about the informant’s criminal record.

This is particularly striking given that the ITO sets out the results of criminal record checks done on eight other principals mentioned in the document. [ 30 ] While it is true that the ITO is silent as to whether or not the CI has a criminal record, the ITO provides the following information regarding the CI which is relevant to credibility: • He or she is a coded informant [23] . • He or she is considered reliable by the Detective Sergeant of the Montréal Police Service who received the information in relation to this file, as well as by his handlers. • He or she has provided information leading to arrests in the past. • He or she has provided information that has been corroborated by investigations or other CIs in the past. • He or she has never provided false or misleading information [24] . [ 31 ] The ITO also notes that the CI’s principal motivation is collaboration with the justice system.

He or she has received compensation for his or her collaboration in the past. [ 32 ] Applicant urges the Court to conclude that this information is insufficient to ground the CI’s credibility. [ 33 ] Applicant places much weight on the decision of the Ontario Court of Appeal in Rocha [25] . In that case, Justice Rosenberg refers to “some odd wording” in the ITOs as follows: For example, they describe the informer as having no convictions for perjury or public mischief. The ITOs do not set out whether the informer otherwise has a criminal record.

They indicate that the informer has previously provided information to the police that lead to persons being "arrested/charged" and illegal narcotics and stolen property seized. The ITOs do not clearly indicate that any person was convicted as a result of the information provided by the informer. [26] [ 34 ] In the analysis pursuant to section 24(2), Justice Rosenberg takes issue with the failure of the affiant to disclose the criminal record of the informer.

He concludes that the statement that the informer did not have a record for perjury and public mischief was “obviously intended to leave the impression of honesty on the part of the informer”, and points out that these are not the only types of offenses relevant to the honesty and credibility of the confidential informer [27] .

[ 35 ] Ultimately, Justice Rosenberg agrees with the trial judge that the ITO was not sufficient to justify granting the warrant to search the accused’s home. However, notwithstanding these findings, Justice Rosenberg examines the “totality of the circumstances” and indicates that if he had been asked to rule on the other warrant, which included exactly the same “odd wording” regarding the informer, he would have concluded that it contained sufficient grounds and upheld it [28] .

This is despite the failure of the affiant to disclose the informant’s criminal record, and the potentially misleading nature of the statement to the effect that he or she had no record for perjury and public mischief.

In fact, the compelling nature of the tip, considered in the context of the balance of the information found in the ITO, rendered the ITO in relation to that other warrant sufficient. [ 36 ] Indeed, the case law is clear that “the assessment of the reliability of an informer’s tip is to be made on the basis that weaknesses in one of the Debot [29] factors may, to some extent, be compensated for by strengths in the other two factors” [30] . [ 37 ] Returning to our case, while it would certainly have been preferable for the affiant to disclose whether or not the CI has a criminal record, this omission is not fatal.

Similarly, it would have been more helpful to indicate whether or not information provided by the CI lead to convictions, as opposed to arrests and charges. However, this too, on its own, is not determinative. Compelling [ 38 ] In assessing whether CI information is compelling, courts assess whether or not the informer’s tip contains “sufficient detail to ensure it is based on more than mere rumour or gossip [31] ”. In that regard, attention is paid to whether the CI discloses the source of his or her knowledge.

It is well-established that “bald conclusory statements cannot support the veracity of CI information [32] ”. [ 39 ] Applicant argues that in addition to the shortcomings in the ITO regarding CI’s credibility, the information provided by the CI is not sufficiently compelling. In particular, he underscores the following areas of weakness: • The CI mentions that Applicant “could” [33] have weapons. [ 40 ] As rightly pointed out by Applicant, the use of the conditional “could” considerably diminishes the compelling nature of this tip.

In fact, the Court questions whether any weight can be put on this tip at all. • The CI states that he has seen Applicant counting approximately $50,000 at his home and that Applicant would have a hiding place in his home. [ 41 ] Applicant points out that the ITO does not mention when the CI would have seen Applicant counting money. There is also no explanation as to where this money came from. These failures render the information less compelling.

In addition, the allegation that Applicant “would” have a hiding place in his home sounds like an assumption on the part of the CI, rather than an affirmative assertion. [ 42 ] The Court agrees with these observations. [ 43 ] Let us examine, however, the other information provided by the CI: • Applicant has an alias – “Cook”. • Applicant is in charge of the “private loan book” [34] and sports betting operation for the Mirarchi clan.

In light of these functions he is a leader of the clan. • Applicant knows his life is threatened by another group within the Italian organized crime world in Montréal. • The neighbourhood and street where Applicant lives. • The Applicant has armed bodyguards who protect him and drive him around. • The make and model of the car driven by the bodyguard(s) [35] . • The model and colour of the car driven by Applicant [36] . • The names of Applicant’s bodyguards (the CI mentions the first name of one – “Johnny”, and the full name of the other – “Frank Catalano”). • The CI also identifies one of the bodyguards in a photo and comments on the fact that he had lost weight over the past few years.

• These same bodyguards have been providing Applicant with protection for months. • Applicant’s bodyguards are “part of the organization” and collect money for him on occasion. • Applicant is a hunter but he would never risk being caught with a weapon. He has his bodyguards carry the weapon. • In fact, Frank carries the weapon which serves to protect Applicant. • Frank possesses a weapon which he keeps in a purse. • Applicant is close with Éric Di Tomaso. Di Tomaso sort of directs the lending “on the ground”.

Once money has been collected he brings it to Applicant. • The CI learned directly from Applicant in the past that his bodyguards are armed in order to protect him. • The CI saw Frank and Johnny a few days ago [37] . • Applicant is active in trafficking cocaine, despite directives from the chief of the Mirarchi clan. He has created alliances with others within the Mafia. This may lead to negative financial consequences as well as the loss of his status within the organization. • Applicant frequently goes to Gianni Café [38] . [ 44 ] Much of this information is quite detailed [39] .

The more detailed the information, the easier it is to exclude the possibility that it is based on mere rumour [40] . Some of the information is based on the CI’s firsthand knowledge [41] . [ 45 ] On the other hand, the source for the CI’s knowledge is often unexplained. [ 46 ] Let us look, then, at the extent to which the information is corroborated. Corroborated [ 47 ] As previously mentioned, in addition to the information received from the CI, the ITO contains information obtained from research in police databases. Surveillance was also conducted 15 times between April 17 and June 8, 2017.

Police Databases [ 48 ] Research in the databases confirmed that Applicant resides at 3488 rue du Commandant in Laval. It also revealed that he has a firearms permit [42] . [ 49 ] In terms of the cars mentioned by the CI, the information contained in police databases confirmed that one of the two bodyguards identified by the CI (Gervasi [43] ) owns a Volkswagen Touareg [44] . Police surveillance [ 50 ] Police surveillance yielded the following information which serves to corroborate that provided by the CI [45] : • April 17, 2017 [46] : Gervasi uses a Volkswagen Tiguan and a Jeep Cherokee.

These vehicles are parked in front of the address on his driver’s license.

• April 18, 2017 [47] : Gervasi is seen driving the Volkswagen Tiguan; he and Catalano meet Applicant at his home at 3488 rue du Commandant; Casale and Catalano drive somewhere in a 2015 Cherokee; Applicant and Catalano go to Gianni Café Bistro (hereinafter: Gianni Café) together.

According to the analysis done of this surveillance by Detective Sergeant Dubé, when Catalano exits Gianni Café he has the characteristics of someone who is armed. • April 19, 2017 [48] : Catalano is seen driving a 2016 black Jeep Cherokee [49] . • April 20, 2017 [50] : Gervasi is seen driving the Volkswagen Tiguan; Catalano is driving the 2016 Jeep Cherokee and goes to 3488 rue du Commandant; Catalano gets into the 2015 Jeep Cherokee with Applicant, they are followed by the Tiguan; Both cars go to the home of Éric Di Tomaso [51] . Later, Applicant and Catalano are seen leaving Gianni Café together.

According to the analysis done of this surveillance by Detective Sergeant Dubé, when Catalano is outside Gianni Café, he appears to be carrying an object with features compatible to that of a handgun in his front right pocket. The analysis of the videos and the surveillance also indicates that Catalano is “in protection mode” in relation to Applicant. • April 21, 2017 [52] : Gervasi parks his Tiguan in front of 3488 rue du Commandant; when Catalano and Applicant have lunch together, Catalano appears to be wearing a bulletproof vest.

A discussion takes place in a parking lot during which time it appears, upon analysis, that Catalano is “in protection mode” in relation to Casale. According to the analysis of the video footage by Detective Sergeant Dubé, it appears that Catalano is concealing a weapon. [ 51 ] In addition to the above, on subsequent days: • Catalano and Applicant are seen together in the 2015 black Jeep Cherokee [53] (May 9, May 11, June 8).

Applicant is also seen driving the 2015 Jeep Cherokee alone, followed by Catalano in his 2016 Jeep Cherokee (May 22). • Gervasi is seen driving the Tiguan - following the car in which Applicant and Catalano or just Catalano alone are found (April 27) or upon leaving a meeting with Applicant and Catalano (June 6). • Applicant attends Gianni Café (June 8). • Catalano acts in “protection mode” in relation to Applicant (April 26, April 27, May 11, June 8). • Video analysis by Detective Sergeant Dubé indicates that when Catalano is with Applicant, he appears to be armed, or at least carrying a heavy hidden object (April 26, April 27, May 11). • Catalano is carrying a “purse” [54] (June 6, June 8). • Catalano meets with Éric Di Tomaso and appears to give him an envelope he had picked up earlier in the day [55] . [ 52 ] This non-exhaustive

summary clearly demonstrates that many of the details provided by the CI are corroborated by other investigative techniques. Such corroboration compensates for the fact that the source of much of the CI’s information is not revealed in the ITO. Conclusion on the first issue - the CI [ 53 ] The “totality of the circumstances” approach demonstrates that the information received from the CI in this case is reliable. The specific deficiencies raised by Applicant are addressed by analysing all of the “three Cs” as a whole rather than in isolation from one another.

[ 54 ] The information obtained from the CI could certainly be relied on by the authorizing Justice in assessing the existence of reasonable grounds. Second issue: the nexus between the alleged offenses and Applicant’s home [ 55 ] The determination that the information received from the CI is reliable does not end the analysis.

Indeed, the Court must examine the nature of the information set out in the ITO, both that obtained from the CI and the other means of investigation, in order to assess whether it reveals the existence of reasonable grounds to believe that evidence can be found at Applicant’s home. [ 56 ] The ITO seeks authorization to search for evidence in relation to two different offenses.

In analysing the sufficiency of the information put before the issuing Justice, it is therefore instructive to break down the facts contained in the ITO in relation to each offense, and to identify why the affiant affirms that she reasonably believes evidence in relation to such offense will be found at Applicant’s home. Possession of illegal weapons According to the CI: • Applicant “may” possess firearms.

He is a hunter but he would not risk “getting caught” with a firearm. • Applicant has his bodyguards carry the weapon. • The CI learned directly from Applicant in the past that his bodyguards carry weapons to protect him. • Mr. Catalano, his bodyguard, carries a firearm in his handbag. • Mr. Catalano wears the weapon in order to protect Applicant [56] . Surveillance and analysis of surveillance by Detective Sergeant Dubé • On numerous occasions, Mr. Catalano is seen accompanying Applicant in his daily activities. • Mr.

Catalano’s behaviour renders it clear that he is acting “in protection mode”, that is, as Applicant’s bodyguard. • On these occasions, Mr. Catalano is armed. [ 57 ] Respondent argues, at paragraphs 58 through 60 of its written submissions that a plain reading of the ITO could reasonably lead to the inference that Applicant is in possession of illegal firearms, which he stores in his home. [ 58 ] The Court does not agree. It bears repeating that according to the CI, Applicant may have firearms.

All the other information collected during the investigation confirms that Applicant believes he needs protection and therefore surrounds himself with armed bodyguards. However there is nothing which gives rise to the inference that weapons are kept in Applicant’s home. This is pure conjecture [57] . [ 59 ] The Court also notes that the affiant sought a judicial authorization to search for firearms and ammunition, as well as bullet proof vests.

It is noteworthy that the only person seen wearing a bulletproof breast is Catalano. [ 60 ] The Court is mindful that the case law does not require corroboration of the very criminality that is being investigated. Stated plainly, it was not a requirement for the CI to have seen a firearm stored at 3488 rue du Commandant. [ 61 ] However, the affirmation by the CI that Applicant may have firearms is simply not enough.

The tentative nature of this tip could possibly have been remedied if any other information regarding the presence of firearms at Applicant’s home had been generated through other means of investigation. This was not however the case. [ 62 ] At best, the ITO gives rise to suspicion that there may be illegal firearms in Applicant’s home. This falls short of the constitutional standard. Loan Sharking According to the CI: • Applicant is in charge of the private loan book and sports betting of the Mirarchi clan, and is in fact a leader of this clan.

• Applicant’s bodyguards Frank and Johnny [58] are also part of the organization and collect cash for Applicant on occasion. • Applicant is close to Éric Di Tomaso. It is from Di Tomaso that Applicant receives the funds collected as a result of the loan sharking activities. • He or she saw Applicant counting $50,000 in his home. • Applicant would have a hiding place (a “cache”) in his home. Police databanks: • Applicant has no criminal record [59] . • Di Tomaso has no criminal record, although he does have a pending case for uttering threats [60] .

Surveillance and analysis of surveillance by Detective Sergeant Dubé • On April 18, 2017: − Applicant meets with an unknown man in front of 3488 rue du Commandant. He gives the man an object which is red and 6” x 2” x 2” in dimension. Catalano and Gervasi stand in the background watching. The unknown man leaves and goes to 3487 rue du Commandant. − Applicant and Catalano go to Carrefour Multisports.

Applicant goes inside and Catalano goes to 2430 rue des Grisons, apartment 103, in Laval and then heads back to pick up Applicant and return to 3488 rue du Commandant. − Later in the day they exit 3488 rue du Commandant, get gas, and go to Gianni Café, before returning to 3488 rue du Commandant. − Catalano exits 3488 rue du Commandant alone and goes to Gianni Café for nine minutes. • On April 20, 2017: − Catalano leaves Steve Sports Bar and goes to meet Applicant at 3488 rue du Commandant.

The two get into Applicant’s car, and are followed by Gervasi in his car, to the home of Éric Di Tomaso. − Later on, after dropping Applicant off at a restaurant, Catalano makes a four-minute stop at one address, followed by a one-minute stop at Steve Sports Bar. When he exits the location of the one-minute stop, he is carrying a beige document holder. He goes to Salon de Coiffure Fuschia Elle et Lui and then brings the beige document holder to an address in St-Jérôme. • On April 26, 2017: − Catalano and Applicant are at 3488 rue du Commandant and drive to a tanning salon.

Catalano waits outside while Applicant is inside, and then drops him off at Carrefour Multisports. While Applicant is there, Catalano goes to 2430 rue des Grisons for 34 minutes, before heading back to pick up Applicant. − Catalano then drops Applicant off at a store (SAIL). Catalano leaves Applicant alone there and goes, on his own, to 3488 rue du Commandant, where he enters and stays for three minutes before returning to the store. Catalano goes into the store for eight minutes before the two men exit the store together.

− They then go to 3032 Boulevard le Carrefour where they meet with someone named Armando Vendittozi [61] . − Later, Catalano and Applicant return to 3488 rue du Commandant. Catalano leaves on his own and goes to a café (Café Terrasse St-Thomas). He takes a black purse shaped like a pencil case from the trunk of his car. He enters the café and leaves four minutes later without the black purse. He then makes a 33 minute stop at one location before going to deposit a check at the ATM. Next he goes to Salon de Coiffure Fuschia Elle et Lui and then to Steve Sports Bar.

Vendittozi enters the bar with a white piece of paper in his hands. • On April 27, 2017: − Catalano leaves 2430 rue des Grisons and goes to pick up Applicant at 3488 rue du Commandant. He takes him to the store “Best Buy” and then to Carrefour Multisports. While Applicant is there, Catalano goes to 2430 rue des Grisons for 51 minutes, before going to pick up Applicant and bringing him to 3488 rue du Commandant. − Upon leaving 3488 rue du Commandant, Catalano returns to 2430 rue des Grisons.

He exits briefly to go to his car, and then enters 2430 rue des Grisons once again holding something small and black in his hand. He enters the specific apartment using keys. − After leaving rue des Grisons, Catalano makes a number of trips back and forth between Salon de Coiffure Fuschia Elle et Lui and Steve Sports Bar. • On April 28, 2017: − Catalano goes to Steve Sports Bar for 9 minutes and then Salon de Coiffure Fuschia Elle et Lui. Next, he goes to Gianni Café before heading to 3488 rue du Commandant, where he stays for 15 minutes. − He then goes to the workplace of Armando Vendittozi [62] .

When he enters he has papers in his hand, which he no longer has in his hands when he exits. − Catalano goes back and forth between Steve Sports Bar and Salon de Coiffure Fuschia Elle et Lui. − He then goes to Gianni Café. • On May 2, 2017: − Catalano exits Salon de Coiffure Fuschia Elle et Lui. − Catalano goes to the workplace of Armando Vendittozi. − Catalano goes to Gianni Café.

• On May 11, 2017: − Catalano goes back and forth between Steve Sports Bar and Salon de Coiffure Fuschia Elle et Lui three times. − He goes to 3488 rue du Commandant and then returns and goes there and back between Steve Sports Bar and Salon de Coiffure Fuschia Elle et Lui multiple times. − He then returns to 3488 rue du Commandant. • On May 17, 2017: − Catalano goes into 2430 rue des Grisons and stays for five minutes. When he exits, he has a yellow 8½ x11 envelope in his hand. − Catalano then drives to an address. He remains seated in his car and has a discussion with an unknown man.

Éric Di Tomaso then arrives and both he and Catalano get out of their cars to talk. Catalano takes the 8½ x 11 yellow envelope and puts it in a black document holder and walks towards the building with Di Tomaso.

They stay there for about seven minutes and when Catalano gets back into his car his hands are empty. − Catalano goes to Vendittozi’s wokplace and enters holding a white letter sized envelope. − He then goes back and forth between Salon de Coiffure Fuschia Elle et Lui and Steve Sports Bar. − He goes to another address, changes his clothes, and goes to Gianni Café. • On May 22, 2017: − Catalano goes to rue du Commandant [63] and then to Carrefour Multisports. Applicant’s car is parked there. − Catalano goes to 2430 rue des Grisons and enters with a white letter sized envelope.

He stays inside for one minute and then returns to wait for Applicant outside Carrefour Multisports. Once Applicant comes out, Catalano follows him (they are each in their own cars) to 3488 rue du Commandant. − Catalano brings Applicant and a young child to an address. He enters with them for a few seconds but then goes to Café Terrasse St-Thomas [64] . He exits six minutes later, searches through his trunk, and then goes back inside for 18 minutes. − Catalano goes to Gianni Café. − He then goes to pick up Applicant and brings him and two or three children to 3488 rue du Commandant.

− On June 8, 2017: − Applicant and Catalano go to Gianni Café. They each have a brief discussion with an unknown man outside the café. While Applicant is discussing with this man, Catalano is in “protection mode” and a second unknown man seems to be in protection mode as well. − Applicant meets another unknown man outside the café. Catalano is still “in protection mode”. When the discussion is over they enter the café. − Upon leaving the café, they go to 3488 rue du Commandant. [ 63 ] Applicant submits that the net effect of all of this is that the police observed a lot of legal activity.

He insists that the warrant includes no information about the places which appear frequently throughout the surveillance - 2430 des Grisons, Salon de Coiffure Fuschia Elle et Lui, Steve Sports Bar, Gianni Café - or other places that come up, albeit less frequently, like Café Terrasse St-Thomas or the workplace of Armando Vendittozi. There is also no independent evidence that Di Tomaso, who has no criminal record, is active in loan sharing.

Applicant therefore affirms that no meaning can be attached to these aspects of the surveillance evidence. [ 64 ] Applicant also argues that even if the Court concludes that there was sufficient evidence of loan sharking [65] , it was only speculative to believe that evidence of this offence would be found at Applicant’s home. [ 65 ] It is true that if examined in a vacuum, there may be innocent explanations for each observation. However, individual elements of the ITO should not be examined in silos, and the evidence should not be assessed in a fragmented manner.

The approach to the review process is contextual, and the reviewing court must assess the cumulative effect of all of the evidence [66] . [ 66 ] Furthermore, the surveillance must not be assessed in isolation, but in conjunction with the reliable information from the CI that Applicant is heavily involved in loan sharking, that his bodyguards are also involved in the organization and collect cash for him on occasion, and that he works with Di Tomaso.

It is these tips which give significance to the short stops, the frequent backs and forths between recurring locations, the sightings of Catalano holding envelopes, pencil cases and document holders, the meetings with Di Tomaso and all of the other activities observed by the police. [ 67 ] This holistic view of the evidence leads the Court to conclude that there were reasonable grounds for believing that loan sharking was taking place and that Applicant and Catalano were involved. [ 68 ] As to whether there were reasonable grounds to believe that evidence would be found at Applicant’s home, Respondent argues that the ITO establishes “ 3488 rue du Commandant as one of the most recurrent focal points for potentially illicit activities involving Applicant and Mr.

Catalano, notably loan sharking [67] ”. [ 69 ] In fact, the following emerges from the surveillance: − On one occasion, Applicant is seen giving a 6" x 2" x 2" red object to an unknown man outside 3488 rue du Commandant, as Catalano and Gervasi stand in retreat. − On multiple occasions, Applicant and Catalano, or, often Catalano alone, are seen leaving 3488 rue du Commandant and going directly to Gianni Café (April 18), Di Tomaso’s home (April 20) or 2430 rue des Grisons (April 26 [68] , April 27). − Catalano is seen entering Applicant’s home alone for short periods of time (April 26, April 28 [69] ). − On one occasion, Catalano leaves 3488 rue du Commandant and then is seen bringing a black purse shaped like a pencil case somewhere (April 26). − On April 27, upon leaving 3488 rue du Commandant, Catalano is seen bringing something small and black into 2430 rue des Grisons [70] . − On May 11, Catalano goes to 3488 rue du Commandant and then goes back and forth between Steve Sports Bar and Salon de Coiffure Fuschia Elle et Lui multiple times before returning to 3488 rue du Commandant. [ 70 ] This list is not exhaustive and is in addition to the other comings and goings when Catalano is seen picking up and dropping off Applicant.

[ 71 ] The information from the CI that he or she had seen the Applicant counting approximately $50 000 at his home, and that he would have a cache must also be kept in mind, despite the limitations with this tip discussed above [71] . [ 72 ] It is worth reiterating that this Court, in its review capacity, must recognize the power of the issuing Justice «to draw reasonable inferences from explicitly stated evidence».

Where evidence supports more than one inference, it not the role of this Court to prefer one inference over another [72] . [ 73 ] In assessing the legality of the warrant, the Court must be mindful that it must not ask itself whether it would have issued the warrant. The warrant is presumptively valid and the burden is on Applicant to prove that the issuing Justice should not have issued it.

At this stage, the issue is not whether in this Court’s opinion the application for the search warrant should have been granted, but “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” [73] . [ 74 ] In the case at hand, while this Court may not have issued a warrant to search Applicant’s home, a review of the entirety of the information contained in the ITO established a sufficient nexus between the offence - loan sharking - and Applicant’s home. [ 75 ] The Court therefore concludes that there was sufficient credible and reliable evidence to enable the authorizing Justice to find reasonable grounds to believe not only that the offence of loan sharking was being committed, but also that evidence would be found at Applicant’s home.

Third issue: The drafting [ 76 ] This argument can be dealt with quite expeditiously. Unlike Applicant, this Court finds that the information found in the ITO is presented in a well-organized and accessible manner. The distinction between information gleaned through the CI, police databanks and police surveillance is clear. Details are often included in bold characters.

The ITO contains very little superfluous information. [ 77 ] Applicant points to what he characterizes as an incongruity in the drafting in that the affiant mentions a number of times that Catalano is “in protection mode” in relation to Applicant, but fails to include other comments as to the conclusions that can be drawn from the evidence. [ 78 ] The Court does not consider this problematic. It was open to the affiant to choose how to draft the ITO.

While the comments about Catalano acting “in protection mode” may have been helpful, summarizing statements explaining the significance of the other evidence were not necessary. The ITO is written with enough clarity to enable the reader to make the necessary links and draw any relevant inferences [74] . In fact, it was preferable for the affiant to present the results of the investigation and to enable the authorizing Justice to draw his own conclusions. CONCLUSION [ 79 ] In

summary, the Court finds there were reasonable grounds to believe that evidence of loan sharking could be found in Applicant’s home. However, it finds that there were insufficient grounds in relation to the possession of illegal firearms. [ 80 ] What does this mean in terms of the overall validity of the warrant? [ 81 ] In R . v. Whitaker [75] , the Court dealt with a similar situation such as the one before us.

A warrant was issued to search the residence of the accused for a number of items in relation to three offenses - production of cannabis, trafficking in a controlled substance and possession of property obtained by drug-related offenses. The reviewing court concluded that there was an absence of reasonable grounds to believe that there was a grow-op at the residence, and that the warrant should not have been granted in relation to this offense. [ 82 ] The Court went on to find that in light of the doctrine of severability, “it does not follow that the warrant is invalid in all respects” [76] .

In fact, it upheld the warrant, holding that “the only flaw in the issuing process is a lack of reasonable grounds with respect to one of several offences” [77] . [ 83 ] Similar reasoning was applied in R . v.

Sonne [78] , where the reviewing judge concluded that the issuing justice could have issued the warrants to search the accused’s residence with respect to two of the named offences, but that the other two named offences were not supported by the ITO, and that evidence specifically identified as relating to those offenses was also unsupported. [ 84 ] The reviewing court applied the doctrine of severability and excised the reference to the two offenses not supported by the evidence.

It went on to say that there remained a valid authorization to search the residence of the accused [79] . [ 85 ] Returning to the case at hand, the Court has reviewed the ITO with a view to identifying any information which would not have been included were it not for the erroneous allegation in relation to the illegal possession of firearms.

In fact, the overwhelming majority of the ITO addresses activities related to loan sharking activities, which includes evidence that Catalano [80] served as Applicant’s driver and bodyguard and, in that capacity, was armed. [ 86 ] The Court is convinced that all of the information contained in the ITO would have been included even if an authorization was not being sought to search Applicant’s residence for firearms.

Not only is it relevant to the loan sharking offense, but it served to corroborate much of the other information included in the tip from the CI. [ 87 ] Furthermore, in coming to the conclusion that there were insufficient grounds in relation to the possession of illegal firearms, the Court is not in any way questioning the reliability of the information provided by the CI. Its conclusion is based on the qualified nature of the tip.

[ 88 ] Indeed, if anything, the fact that the CI was careful to indicate that Applicant may have firearms serves only to increase his or her credibility. [ 89 ] As such, the Court will excise the reference to the illegal possession of firearms in the list of offenses mentioned in the warrant.

Similarly, the reference to firearms, ammunition and bullet proof vests as items to be searched for will also be severed. [ 90 ] Having severed these aspects of the warrant, there remains a valid warrant to search for items in relation to loan sharking, including proof of residence [81] , documents relating to loan sharking, as well as money.

In other words, in the specific circumstances of this case, the fact that the search warrant incorrectly authorized a search in relation to illegal possession of firearms does not invalidate the entire warrant. [ 91 ] The parties conceded during their oral submissions that if the Court concludes that the police were entitled to search Applicant’s residence in relation to the loan sharking offense, they would necessarily have found the Beretta and hashish [82] . FOR THESE REASONS, THE COURT: DISMISSES the Application for the Exclusion of Evidence. __________________________________ SUZANNE COSTOM, J.C.Q.

Me Dominique Shoofey Me Frank Addario Me James Foy Counsel for Petitioner (Accused) Me Marianna Ferraro Me Éric Poudrier Director of Criminal and Penal Prosecutions Counsel for Respondent (Prosecutor) Date of hearing: April 29, 2019