R. v. Hamouth, 2020 ONCJ 363

ONTARIO COURT OF JUSTICE CITATION: R. v. Hamouth , 2020 ONCJ 363 DATE: 2020 08 19 Toronto Region BETWEEN: HER MAJESTY THE QUEEN — AND — RENE HAMOUTH Before Justice L. Feldman Heard on June 11, 29, 2020 Reasons for Judgment released on August 19, 2020 C. Lindo-Butler.................................................................................... counsel for the Crown A. Gold, L.

Metcalf.............................................. counsel for the accused Rene Hamouth FELDMAN J.: Introduction [ 1 ] Rene Hamouth is charged with possessing a firearm without holding a licence (s. 91(1)), possessing a firearm without a holding licence (s. 92(2)), and possessing a loaded prohibited firearm without holding a licence permitting such possession (s. 95(1)). [ 2 ] He was arrested in his home at 199 Norton Ave., in Toronto, following execution there of a search warrant that related to his son, Ryan, but not him.

Police also executed search warrants at 48 Alton Ave., 173 Kingsview Dr. in Bolton and on 2 motor vehicles, a Mercedes Benz and a Lamborghini that were, as well, about Ryan. [ 3 ] Mr. Hamouth applies in a Garofoli [1] hearing to set aside the search warrant for 199 Norton Ave. and to have the 4 firearms seized from his residence excluded from the evidence.

He says there is an insufficient evidentiary basis in the Information to Obtain (ITO) to support a finding of reasonable grounds to believe that Ryan was in unlawful possession of a firearm and that the applicant’s home was also Ryan’s dwelling house, as written in the warrant. [ 4 ] The Crown concedes that the ITO, redacted to protect the identity of the confidential informant, vulnerable to retribution should his or her identity be even implicitly revealed by disclosure [2] , is insufficient to justify authorizing the warrant.

She asks that in the circumstances we move to a step-six procedure that will involve the preparation of a judicial

summary and my review of the unredacted portions of the ITO. [ 5 ] The Crown submits that the available information, including the unredacted content of the ITO, permits the inference that Ryan was an occupant of 199 Norton Ave. with a substantial connection to that home, so that the justice would not have been misled in this regard before authorizing the warrant. [ 6 ] As described in Sadikov , the question for this court during the step six process is whether there is sufficient “credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…” [3] .

The applicant says the assertion that 199 Norton Ave. was Ryan’s home was misleading and that the search warrant ought not to have been granted.

[ 7 ] At this “pretrial threshold evidentiary hearing” [4] , the test for the reviewing court is “whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued” [5] . It follows that I cannot substitute my own view over that of the issuing justice.

The Redacted ITO [ 8 ] Trial judges are instructed that in assessing information contained in the ITO provided by the CI, they must consider whether that information is compelling, credible or corroborated by police investigation prior to the decision to conduct the search [6] . [ 9 ] The term, ‘compelling’ relates to the reliability of the informer’s tip, such as the degree of detail provided and his or her means of knowledge, that is, whether the observations were made first-hand or were based on second-hand hearsay, rumour or gossip.

Questions of ‘credibility’ derive from the informer’s motivation, criminal antecedents and history of furnishing information to the police that is reliable. ‘Corroboration’ refers to supporting information uncovered by police investigation [7] . [ 10 ] As noted, the Crown has acknowledged that the substantially edited ITO, does not provide a sufficient evidentiary basis to justify authorizing the warrant, in particular, with regard to 199 Norton Ave. [ 11 ] The affiant describes this address as the “dwelling house” of Ryan Hamouth, whereas the applicant notes that his son’s driver’s licence has a Mississauga address, as does CIPC.

Mr. Gold says the information at best would support an inference that Ryan was a visitor or guest, not a resident. [ 12 ] Information in the ITO about 199 Norton Ave. describes 2 days of police surveillance on June 21 and 22, 2019. On June 21, members of the Toronto Police Gun and Gang Task Force observed a white Mercedes Benz parked in the driveway. They saw a delivery being made to the house received by Ryan Hamouth at the front door. A short time later, he drove off in the Mercedes with Renata Koch, one of his girlfriends and in whose name the car is registered. Police followed them to Ms.

Koch’s home at 173 Kingsview Dr. in Bolton where he dropped her off. Mr. Hamouth drove back to 199 Norton Ave and went back inside. [ 13 ] The next morning, police watched Ryan leave his gym and drive the Mercedes back to 199 Norton Ave, from which he later drove to Costco and then back to Norton Ave. Sometime later he went to a restaurant. From there he drove the Mercedes to 48 Altamont Rd, where Kash Targonski, his other girlfriend, lives with their two children. At the time, she was pregnant with their third child. [ 14 ] Previously, on May 18, 2019, police had attended 48 Altamont Rd. on a domestic call.

Apparently, there had been a verbal argument between the two. The police report indicated that Ryan lived elsewhere but visited that address daily. [ 15 ] As well, on three occasions in the summer and fall of 2018, Mr. Hamouth was stopped for Highway Traffic Act infractions at locations in the Finch/Willowdale area not far from both199 Norton Ave and 48 Altamont Rd. On each occasion, he failed to surrender his driver’s licence. He was driving a white Lamborghini on two of those stops, once in the Mercedes.

The former vehicle is also registered to Renata Koch. [ 16 ] The affiant deposed that it was his belief these were residences associated to the Applicant that provided a ‘safe’ base of operation for the control and storage of the items to be searched for. The two vehicles were listed as providing the means to transport the items. [ 17 ] Because of the redactions and insufficiency of information and grounds, the Crown prepared a judicial

summary as part of the step six process in support of the authorization. The Judicial

Summary [ 18 ] In an email exchange with the Crown, I raised questions with her about the content of the judicial

summary to determine if more information could be safely disclosed. Mindful of the admonition of Nakatsuru J. in Thelwell that a reviewing judge should be careful not to overextend a source’s protection [8] , I am satisfied with the answers I received. In the end, it was made known that information provided in the past by the CI had proven reliable. [ 19 ] The content of the judicial

summary is to be general, not detailed. In Reid , Juriansz J.A. said that it must provide the accused with “a meaningful basis on which to challenge whether the author of the ITO made full and frank disclosure of the Debot factors relating to the confidential informant”. The

summary need only make the defence aware of the nature of the redacted material, not its substance [9] . [ 20 ] I am satisfied that this judicial

summary has sufficiently disclosed the Debot factors that apply to the CI and that reveal the nature of the redacted information in the ITO. The nature of some of this information includes the source’s motivation, whether he or she has a criminal record or outstanding charges and, if so, their details, and whether the CI has provided information in the past to the police that has proven either reliable or unreliable. [ 21 ] Regarding the compelling nature of the information, the

summary speaks to its recency and whether observations made were first-hand or were second-hand hearsay, how the CI knows Ryan and its duration, specific, personal detail regarding Ryan, his criminal activity and his possession of firearms, a portion of which was corroborated by surveillance or versedex, and specific, personal information about Rene Hamouth. [ 22 ] Mr. Gold says it is significant that there is no corroboration of the source’s tip that Ryan was seen in possession of a firearm.

However, I accept that when the police move expeditiously to remove guns from the street to protect the public it is often unrealistic to expect a relatively brief investigation to reveal direct evidence of the offence. At the same time, truncated surveillance, as in this case, limits the gathering of information and may jeopardise the validity of the warrant. [ 23 ] I am satisfied that the content of the judicial

summary is sufficient to allow the defence to challenge the redacted material by

argument or evidence [10] . That leaves it open to this court to consider the unredacted portions of the ITO to determine whether the issuing justice could have found reasonable and probable grounds that an offence was committed by the accused (Ryan) [11] . [ 24 ] Mr. Gold contends that even assuming there is information pointing to Ryan’s possession of firearms, if there is information that Ryan has a mere association with 199 Norton Ave. but is not residing there, then the entire rationale of the affiant is false, the justice misled and the authorization improper. [ 25 ] I will approach this question by looking at the ITO as whole, including the unredacted portion, and the judicial

summary. I will consider whether there is reliable evidence or information on the basis of which the warrant could have issued. [ 26 ] Ryan’s firearms charges were withdrawn. However, the information available at the time the ITO was prepared, particularly in unredacted paras. 24-28, 35, 37 and 39, permits the reasonable inference that he was in possession of a firearm. That possession was given context in those paragraphs and in para. 38 that suggests illegal behaviour on his part.

On all this information, there is a reasonably-based probability that Ryan was in unlawful possession of a firearm or firearms. [ 27 ] Whether 199 Norton Ave. was Ryan’s ‘dwelling house’ is less clear.

Information in the ITO would allow that as a boyfriend he was a welcome guest at the Bolton address, but someone who also spent time daily at 48 Altamont Ave. because of a second intimate relationship and family responsibilities. [ 28 ] Police surveillance over 2 consecutive days indicated that Ryan spent a good portion of that time at 199 Norton Ave where he parked his car, where he received a delivery and from which he would leave to do his personal business only to return. He had unimpeded access. Although there was a second vehicle in the driveway, it was then unclear who else lived there.

Unredacted paras. 24, 25, 29, 31, 34 and 35 reinforce the inference that while Ryan had access to 3 homes, he was at least a part-time occupant of 199 Norton Ave. [ 29 ] While I agree with Mr. Gold that the affiant relied on ‘loose language’ to describe Ryan’s connection to 199 Norton Ave., on the available information, it was open to the justice to find that he had a degree of residential attachment to it, on the basis of which a search warrant could issue. [ 30 ] The s. 8 application is dismissed. Released: August 19, 2020 Signed: Justice L. Feldman