R. v. Grant, 2023 ONCJ 49

ONTARIO COURT OF JUSTICE CITATION: R. v. Grant , 2023 ONCJ 49 DATE: 2023 01 31 COURT FILE No.: Halton Info # 21- 939 B E T W E E N : HIS MAJESTY THE KING — AND — CRAIG GRANT Before Justice Jennifer Campitelli Heard on November 22 and 23, 2022 Reasons for Judgment released on January 31, 2023 Mark Miller …..…………………counsel for the Public Prosecution Service of Canada Deepak Paradkar…………………………………… counsel for the accused Craig Grant CAMPITELLI J.: [ 1 ] The Applicant faces six counts on the information, which is before the court.

Each count is directly related to the execution of a Controlled Drugs and Substances Act Search Warrant on September 19, 2020, by the Halton Regional Police Service at 2102-5025 Four Springs Avenue, Mississauga, Ontario. Mr. Grant challenges the issuance of the search warrant with respect to the address on Four Springs Avenue. He argues that the Information to Obtain (ITO) the search warrant failed to establish that there were reasonable and probable grounds to believe the evidence sought would be located at that address.

Consequently, the Applicant takes the position that the search violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms to be secure from un​reasonable search and seizure. It is the Applicant’s burden on a balance of probabilities to prove the police lacked reasonable and probable grounds. [ 2 ] The Applicant further submits that the arguments raised in support of his challenge to the issuance of the search warrant apply equally to his arrest.

As such, the Applicant argues that his rights as protected by s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms were violated, as the officers lacked sufficient grounds.

With respect to this aspect of the application, the burden of proof lies with the Respondent. [ 3 ] The parties agree that my determination with respect to the validity of the search of the residence, in particular the sufficiency of the grounds underpinning the issuance of the search warrant, will be dispositive of both issues. [ 4 ] The Applicant seeks an order excluding all evidence seized as a result of the execution of the Controlled Drugs and Substances Act Search Warrant on September 19, 2020, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms .

A complete list of the items seized from 2102-5025 Four Springs Avenue, Mississauga, Ontario was filed as a lettered exhibit on this application. [1] Of particular significance, the Applicant seeks exclusion of a loaded Smith and Wesson .40 calibre handgun, 3 grams of cocaine and a quantity of Canadian Currency.

The Legal Framework [5] In R. v. Campbell [2022] O.J. No. 5155 at para. 36 (SCJ), Justice Allen very helpfully summarizes some of the guidingprinciples governing the review process:

(1) The warrant is presumed valid and it falls to the defence to prove invalidity on a balance of probabilities: [R. v. Wilson, 2011BCCA 252, at para. 63, (B.C.C.A.)]:

(2) The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewingjudge to substitute their view for that of the issuing court: [R. v. Garofoli, at p. 1452];

(3) The role of the review is to determine whether there was reliable evidence that might reasonably be believed on the basis ofwhich the warrant could — not would — have issued. There has to be some evidence that might reasonably be believed on the basis ofwhich the warrant could have issued: [R. v. Morelli, at para. 40; R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, [1990] 2. S.C.R.1421, at p. 1452, (S.C.C.)];

(4) The reliability of the information must be adjudged at the time of the application for a warrant. It cannot be considered expost facto from the results of the search: [R. v. Garofoli and R. v. Araujo, at paras. 54 - 56].

(5) Warrant review requires a contextual analysis. Reference to all the information contained within the four corners of theinformation in the ITO provides a fair and reasonable context. The review must involve a scrutiny of the whole of the document and nota limited focus on an isolated passage or paragraph: [R. v. Garofoli, at p. 1452];

(6) An authorization may be set aside on the grounds of fraud, material non- disclosure, misleading disclosure or the discoveryof new evidence that shows that the actual facts are different from those upon which the authorization was granted: [R. v. Garofoli, at p.1399].

(7) Non-disclosure arising from an improper motive or intention to mislead the issuing justice may, standing alone, invalidatethe warrant despite the existence of requisite grounds to issue the warrant: [R. v Colbourne, (ON CA), [2001] OJ No3620, at para. 40, (Ont. C.A.); R. v Kesselring (ON CA), [2000] OJ No. 1436 (Ont. C.A.)].

(8) The review is not an exercise in examining the conduct of police with a fine- toothed comb, fastening on their minor errorsor acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial: [R. v. Nguyen, 2011 ONCA465 , [2011] O.J. No. 2787, at para. 57, (Ont. C.A.)].

(9) Facts that would be known to anyone familiar with the suspect and would not in any way substantiate the allegation that thesuspect was involved in the crime do not address the reliability of the confidential source: [R. v. Zammit, (ON CA),1993 CarswellOnt 93, at para. 26, (Ont.C.A.)]; and

(10) Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: [R. v.MacDonald, 2012 ONCA 244 , [2012] O.J. No. 1673, at para. 20, (Ont.C.A.). [6] Moreover, the reviewing judge must keep in mind that the authorizing justice must consider the ITO as a whole on a common-sense, practical and non-technical basis, and that the authorizing justice is entitled to draw reasonable inferences from the contents of theITO: R .v. Kaup, [2022] O.J. No. 2249 at para. 6 (CA).

Analysis Did the Information to Obtain (ITO) the search warrant establish that there were reasonable and probable grounds to believe theevidence sought would be located at 2102-5025 Four Springs Avenue, Mississauga, Ontario? The Suspected Drug Transactions Involving the Applicant [7] As a result of information received from two confidential informants, the Halton Regional Police service commenced aninvestigation into two individuals, Jordan Treleaven and Douglas Johnson. It was while conducting surveillance with respect to Mr.Treleaven and Mr. Johnson, that Mr. Grant came to the attention of investigators.

The ITO makes reference to seven suspected drugstransactions, which investigators believe specifically involve the applicant. The details of those suspected transactions are brieflysummarized as follows:

(1) March 9, 2020 (

a) At approximately 2:15 p.m. Mr. Johnson attended 5025 Four Springs Avenue in Mississauga in a Dodge Durango and picked upMr. Grant; (

b) At 2:31 p.m., Mr. Johnson and Mr. Grant met up with an unknown Asian male, who was waiting on the sidewalk in the area ofCurran Place in Mississauga; (

c) The Asian male entered the Durango and all parties drove directly into the underground parking garage area at 4065Brickstone Mews; (

d) Approximately five minutes later, at 2:36 p.m. the Durango departed the area with only Mr. Johnson and Mr. Grant inside.

(

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #1 involving Mr. Grant) (

e) Mr. Johnson and Mr. Grant then drove to a commercial parking lot located at 30 Coventry Road in Brampton; (

f) At 3:02 p.m. the Durango was observed to park beside a Chevrolet Impala, where Mr. Johnson briefly spoke with the driver. Mr. Johnson then parked the Durango beside a KIA SUV driven by an individual identified by investigators as Depinder Dhaliwal; (

g) Mr. Dhaliwal entered the Durango for approximately thirty seconds, then returned to the KIA. Investigators noted the brevity of the interaction; however, were not able to see if Mr. Dhaliwal had anything in his hands when he entered or exited the Durango; (

h) Mr. Johnson and Mr. Grant exited the area of 30 Coventry in Brampton, stopped briefly for food, and then Mr. Johnson dropped Mr. Grant off at 5025 Four Springs Road, Mississauga. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #2 involving Mr. Grant)

(2) March 12, 2020 (

a) At approximately 12:12 p.m. Mr. Treleaven departed 3500 Lake​shore Road West, Oakville and met with an unknown person in the parking lot of an Esso gas station at Front Street and Sherbourne Street in Toronto. The unknown person entered the front seat of the Durango for approximately two minutes, exited, and Mr. Treleaven departed the area; (

b) Mr. Treleaven then traveled to 5025 Four Springs Avenue in Miss​issauga, where Mr. Grant was observed to enter the passenger seat of the Durango for approximately thirty seconds. Mr. Grant exited the Durango holding what investigators described as a weighted white shopping bag and entered the south door of 5025 Four Springs Avenue. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #3 involving Mr. Grant)

(3) August 26, 2020 (

a) Investigators observed Mr. Treleaven and Mr. Johnson depart 3500 Lakeshore Road West, Oakville in the Durango. They ran what investigators described as “errands” and then attended at 5025 Four Springs Avenue, Mississauga, where they met with Mr. Grant; (

b) Mr. Grant entered the rear driver’s side of the Durango, the parties parked around the corner, and Mr. Grant exited the Durango less than two minutes later with a black shoulder bag and walked back towards 5025 Four Springs Avenue. Of note, investigators were not able to ascertain if Mr. Grant entered the Durango with the black shoulder bag. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #4 involving Mr. Grant)

(4) September 1, 2020 (

a) Mr. Treleaven and Mr. Johnson were observed in the underground parking area of 3500 Lakeshore Road West in Oakville placing three bags in the trunk of the Durango. All bags appeared to investigators to be “weighted”; (

b) The parties then drove to 5025 Four Springs Avenue, Mississauga, where they met with Mr. Grant. Mr. Grant sat in the rear seat of the Durango for approximately six minutes before he exited the vehicle, retrieved all three bags from the trunk and re-entered 5025 Four Springs Avenue, Mississauga; (

c) Mr. Treleaven and Mr. Johnson return to 3500 Lakeshore Road West, Oakville. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #5 involving Mr. Grant)

(5) September 10, 2020 (

a) At approximately 1:24 p.m. investigators observed Mr. Treleaven and Mr. Johnson depart 3500 Lakeshore Road West, Oakville in the Durango and attend at 5025 Four Springs Avenue, Mississauga, where Mr. Grant is waiting for them at the front of the building; (

b) Mr. Grant entered the Durango, the parties drove around the block, stopped briefly on a side road, before dropping Mr. Grant back off at the front of the building. In total, the interaction took approximately seven minutes; (

c) A surveillance officer observed Mr. Grant exit the elevator on the 21st floor of 5025 Four Spring Avenue, Mississauga on this occasion and enter unit #2102; (

d) After dropping off Mr. Grant, Mr. Treleaven and Mr. Johnson are described by investigators as running series of “errands” and stopping for food before returning to 3500 Lakeshore Road West, Oakville. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #6 involving Mr. Grant)

(6) September 16, 2020 (

a) At approximately 2:30 p.m. investigators observed Mr. Grant exit the south doors of 5025 Four Springs Avenue, Mississauga empty handed and enter the front passenger seat of a black Audi SUV driven by an induvial identified by investigators as Albert Dario; (

b) After approximately three minutes, Mr. Grant exited the Audi SUV carrying a black backpack and entered 5025 Four Springs Avenue, Mississauga; (

c) Mr. Dario immediately exits the area. (

i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #7 involving Mr. Grant) [ 8 ] On September 19, 2020, investigators were monitoring the movements of the Dodge Durango using a tracking device. At approximately 1:10 p.m. investigators observed Mr. Treleaven, Mr. Johnson and an individual identified by investigators as Jani Suutarinen meet with an unknown male at Whole Foods, located at 155 Square One Drive in Mississauga.

The unknown male entered the rear passenger seat of the Durango with what investigators described as a “weighted” black plastic bag. Two minutes later, the unknown male exited the Durango, the black plastic bag was observed to be “waving in the wind” and appeared to investigators to be empty. The Durango immediately left the parking lot and travelled back towards Oakville. The vehicle was stopped by investigators at 1:34 p.m., Mr. Treleaven, Mr. Johnson and Mr. Suutarinen were placed under arrest for possession for the purpose of trafficking and the vehicle was searched.

Investigators located one kilogram of suspected cocaine in the Dodge Durango at that time. It was at this point in the investigation that the affiant drafted and submitted the ITO, which is the subject of this application, to the issuing justice for review. [ 9 ] There is no dispute between the parties that Mr. Grant was not present in the Dodge Durango when it was stopped, searched, and a significant quantity of cocaine was located on September 19, 2020. Counsel for the applicant stresses this fact.

However, the respondent argues it was appropriate, and in fact necessary for the affiant to rely on the ultimate seizure in the formulation of his grounds as articulated throughout the ITO. In particular, the presence of Mr. Treleaven and Mr. Johnson on September 19, 2020, the use of the Dodge Durango on that occasion, and any other observed similarities between the September 19, 2020, transaction and previous observations where the applicant was present.

It is the position of the respondent that the eventual seizure of illicit narcotics properly informed the affiant’s grounds as he drafted the ITO on September 19, 2020, and looked backward, contextually, at the previous months of surveillance. I agree. In my review of whether the ITO contained sufficient reliable information such that a warrant could issue, I must take into consideration all of the information that was known to the affiant at the time the ITO was drafted. That is not engaging in ex post facto reasoning.

Rather, the totality of what had been learned by investigators at the time the warrant was drafted was very properly considered, and ought to have informed the affiant’s grounds as he presented them to the issuing justice. [ 10 ] In addition, it is important that the interactions between these parties, which were observed by investigators over numerous months of surveillance, are not considered in isolation. The applicant argues that the observations outlined by the affiant fall short of meeting the requisite threshold.

Simply put, it is the applicant’s position that it cannot be reasonably inferred that the interactions involving Mr. Grant were drug related transactions. This was mere speculation. The applicant further argues that the affiant’s speculative based conclusions were unsupported by other information in the ITO, which as a whole did not provide reasonable grounds to believe that drug related evidence would be located in 2102-5025 Four Springs Avenue, Mississauga.

Certainly, an objective assessment of the totality of the circumstances surrounding each interaction is required; however, the overall investigative context must not be ignored. [ 11 ] Consequently, I have reviewed the observations related to the applicant in the context of all of the information, which was contained within the four corners of the ITO. On this evidentiary record, investigators received information from two confidential informants, which caused them to commence a drug related investigation into Mr. Treleaven and Mr. Johnson. This investigation ultimately culminated in Mr. Treleaven and Mr.

Johnson being arrested in the Dodge Durango on September 19, 2020, where police located a kilogram of suspected cocaine. I agree with the applicant, that simply because Mr. Treleaven and Mr. Johnson met with the applicant on numerous occasions, that does not necessarily implicate Mr. Grant in any drug related behaviour. Certainly, individuals involved in illicit drug trafficking are entitled to legitimate social interactions. To conclude that everyone a drug dealer interacts with is either buying or selling drugs would rely, at least in part, on stereotypical thinking: R .v. Downes, [2022] O.J.

No. 3410 (S.C.J.) . However, again, the overall investigative context must be considered on these facts. Therefore, in my review, I have focused my analysis on the nature of the interactions observed. In particular:

(1) The repeated brevity of the interactions observed by investigators over months of surveillance. Obvious, planned meetings in various locations where individuals briefly attended inside of the Dodge Durango, then exited. These observed transactions must be considered keeping in mind that the unknown male briefly attended inside of the Dodge Durango on September 19, 2020, just prior to police stopping the motor vehicle and locating suspected cocaine;

(2) The distance travelled by Mr. Treleaven and Mr. Johnson for meetings with Mr. Grant, characterized by Mr. Grant spending only minutes inside of the Dodge Durango. On multiple occasions, the parties are observed to engage in suspicious activity while Mr. Grant is in their presence. Interactions, which involved driving around the corner, parking on side streets, or Mr. Grant simply attending inside of the motor vehicle briefly, before exiting and returning to the address on Four Springs Avenue, Mississauga;

(3) The presence and apparent use of bags on multiple occasions, sometimes described as “weighted” bags, which Mr. Grant is observed to be in possession of when he leaves the Dodge Durango on March 12, 2020 and on September 1, 2020. A bag is also present on September 19, 2020, as the unknown male enters the Dodge Durango with what investigators described as a “weighted” bag and exits the Durango with a bag then described as “waving in the wind”; and

(4) Mr. Grant’s brief interaction with Mr. Dario on September 16, 2020, which is again characterized by a brief attendance inside a motor vehicle, and the presence of a backpack. [ 12 ] I have concluded it was reasonable for the authorizing justice to infer that the interactions observed by investigators were

consistent with drug related transactions. This was not mere speculation on the part of the affiant; rather, the requisite threshold ofreasonable and probable grounds was met. These interactions must be considered objectively, within the totality of the investigativecontext. Each case involves a fact specific analysis and in the result, I find this evidentiary record can be distinguished from that in R .v.Downes. What investigators observed and communicated to the issuing justice was a pattern of arranged meetings characterized by briefinteractions inside of a motor vehicle.

I find the repeated presence and use of bags, sometimes described as “weighted” was more thaninnocuous on these facts. Particularly, given the presence of the bag on September 19, 2020. The additional similarities between thenumer​ous observed transactions, and the transaction on September 19, 2020, where a signi​ficant amount of suspected cocaine waslocated were properly considered in the overall investigative context. The Applicant’s Connection to 2102-5025 Four Springs Avenue, Mississauga [13] Carrying the analysis forward, I also find the nature of the transactions observed and Mr.

Grant’s connection to 2102-5025 FourSprings Avenue, Mississauga supports credibly based probability that evidence of the listed offences would be found at that address. [14] Many of the relevant interactions observed by investigators, where I have found it was reasonable for the issuing justice to inferthat they were consistent with drug related transactions, initiate at the address on Four Springs Avenue, Mississauga.

Moreover, onmultiple occasions, the applicant is observed re-entering that address in the possession of bags, at times described by investigators as“weighted”, immediately following these interactions. On at least two occasions, the bags Mr. Grant exits the Dodge Durango with werenot observed in his possession when he initially entered the motor vehicle. [15] With a view to the applicant’s connection to Unit #2102 in particular, I find the following of significance on this evidentiaryrecord:

(1) On February 11, 2020, the applicant was observed using a “key fob” to access 5025 Four Springs Avenue, Mississauga.Information obtained by investigators pursuant to a production order revealed the “key fob” utilized by Mr. Grant is specifically assignedto Unit #2102;

(2) On February 11, 2020, video footage reviewed by investigators depicts Mr. Grant descending on the elevator from the 21stfloor of the building. The applicant is not observed in the proximity of any particular unit; however, Unit 2102 is located on the 21stfloor of that building; and

(3) On September 10, 2019, just nine days prior to affiant submitting the ITO for review and immediately following one of therelevant interactions, a surveillance officer observes the applicant exit the elevator on the 21st floor of 5025 Four Spring Avenue,Mississauga and enter unit #2102. [16] The test is whether there was sufficient credible and reliable information, which would permit a justice to conclude there werereasonable and probable grounds that an offence had been committed and that evidence of the specified offence would be found at thetime and place of search: R. v. Edwards-Cyrus, [2018] O.J.

No. 6740 at para. 10 (C.A.) citing R. v. Sadikov, 2014 ONCA 72 ,[2014] O.J. No. 376 at para. 84 (C.A.) and R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253 at para. 40 (S.C.C.). I havepreviously concluded that there was sufficient credible and reliable information to permit the issuing justice to conclude there werereasonable and probable grounds to believe the parties, including the applicant, were engaged in drug related transactions. I furtherconclude that the proximity of the relevant transactions to 5025 Four Springs Avenue, Mississauga was of significance on these facts.

Inaddition, I have considered the applicant’s connection to Unit #2102. In particular, the observations made on September 10, 2020, whichwere made very close in time to when the ITO was drafted. I find the totality of the circumstances supported credibly based probabilitythat evidence of the listed offences would be located at 2102- 5025 Four Springs Avenue, Mississauga.

Were the Applicant’s rights as protected by s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms violated as a result ofhis arrest? [17] Given my conclusion regarding the existence of reasonable and probable grounds, and the position of the parties with respect tothis aspect of the application, I have determined that no further analysis is required. The applicant’s rights as protected by s. 8 and s. 9 ofthe Canadian Charter of Rights and Freedoms were not violated as a result of his arrest. Conclusion [18] In the result, the application is dismissed. Released: January 31, 2023 Justice Jennifer Campitelli