



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadikov, 2014 ONCA 72

DATE: 20140127

DOCKET: C52976

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Sadyk Sadikov and Elizabeth Harding

Respondents

Nick Devlin and Jason Mitschele, for the appellants

Dirk Derstine and Janani Shanmuganathan, for the
    respondent Sadyk Sadikov

David E. Harris, for the respondent Elizabeth Harding

Heard:  June 26, 2013

On appeal from the acquittals entered by Justice Frances P.
    Kiteley of the Superior Court of Justice, sitting without a jury, dated October
    26 and 28, 2010.

Watt J.A.:

[1]

During
    the summer and early fall, 2008, Project Hidden Dragon, a police undercover investigation,
    focused on rampant drug trafficking and use at Club 338, a licensed establishment
    in Torontos Entertainment District.

[2]

Undercover
    police officers saw frequent drug transactions carried on overtly before the
    unseeing eyes and unhearing ears of club security, serving, and supervisory
    staff.   A full menu was available.  Cocaine.  Marihuana.  Ecstasy.  Ketamine. 
    And more.

[3]

Four
    times during Project Hidden Dragon, an undercover police officer bought powder
    cocaine at Club 338 from a man who told the officer that his name was Alex. 
    He said he lived nearby.  Alexs real name is Sadyk Sadikov, one of the
    respondents in this appeal.

[4]

Project
    Hidden Dragon ended on October 20, 2008.  Shortly after 4:00 that morning,
    police executed warrants under s. 11 of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19,
(
CDSA
)
    simultaneously at Club 338 and at a second-floor apartment at 306 Adelaide
    Street West (306 Adelaide), a short distance from the Club.  Shortly
    thereafter, they forcibly entered 302 Adelaide Street West (302 Adelaide) without
    a warrant.

[5]

The
    search at 306 Adelaide yielded drugs, a gun, money and two pitbulls.  Police
    arrested the only occupant at the apartment, the respondent Elizabeth Harding,
    the respondent Sadikovs sometime girlfriend.  The warrantless search at 302
    Adelaide revealed drugs and a gun.  After the entry, the premises were secured
    until a search warrant could be obtained.

[6]

Police
    arrested Sadikov at Club 338 when they executed the search warrant at the club.

[7]

At
    the respondents joint trial, the presiding judge quashed the search warrants
    for 306 and 302 Adelaide, then excluded the evidence of drugs, guns, and money
    found there on execution of the warrants.  The judge acquitted the respondents
    of all charges arising out of the searches and seizures at 306 and 302
    Adelaide.
[1]


[8]

The
    Crown appeals the respondents acquittals alleging that the finding of
    constitutional infringement and the exclusion of the evidence obtained during
    the search are procedurally and substantively flawed.  These reasons explain
    why I have concluded that the findings of the trial judge are tainted by legal
    error to such an extent that a new trial is required.

THE BACKGROUND FACTS

[9]

The
    respondents trial began with challenges to the searches conducted at 306 and
    302 Adelaide.  Sadikov contested the reasonableness of both searches and the
    admissibility of the evidence obtained as a result.  Harding, who was the only
    listed tenant of the apartment searched at 306 Adelaide, did not participate in
    the challenge to the search of her apartment.  Later, after the trial judge had
    decided that the searches in both places were constitutionally deficient, and
    that evidence obtained during the searches should be excluded, Harding sought
    and was granted the benefit of the exclusionary ruling.

The Warrantless Search
    at 302 Adelaide

[10]

The appellant
    takes no issue with the trial judges decision that the warrantless entry at
    302 Adelaide could not be justified on the basis of exigent circumstances.  Nor
    does the appellant quarrel with the trial judges decision to quash the
    subsequent search warrant issued for 302 Adelaide, which was granted
    substantially on the basis of the observations made during the warrantless
    entry and search.  Further, the appellant advances no argument about the
    exclusion of evidence (drugs and a gun) recovered during the search of 302
    Adelaide.

The Motion for Leave to
    Cross-examine the Affiant

[11]

During the
voir
    dire
on the warrantless search at 302 Adelaide, Sadikovs trial counsel
    (not Mr. Derstine) sought leave to cross-examine the informant and
    sub-informants (affiant and sub-affiants) who authored or contributed to the
    ITOs for the warrants at 306 and 302 Adelaide.  Counsel relied upon the
    evidence given by the police officers who had testified on the warrantless
    search
voir dire
, their notes, and the evidence they gave at the
    preliminary inquiry.


The Trial Judges Ruling
    on the Motion for Leave

[12]

The trial judge
    dismissed Sadikovs motion for leave to cross-examine the affiants of the ITOs
    for the search warrants executed at 306 and 302 Adelaide.  The trial judge found
    some discrepancies and deficiencies in the ITOs but was satisfied that none
    detracted from the conditions precedent necessary for issuance of the warrant.
    She was satisfied further that no basis had been shown to grant leave to
    cross-examine the sub-affiants.

The Warranted Searches
    at 306 and 302 Adelaide

[13]

The
voir dire
continued on the warranted searches at 306 and 302 Adelaide.  Sadikov called
    four witnesses who gave evidence about his arrest at Club 338, the execution of
    the warrant at 306 Adelaide, and the items found and photographed at 302
    Adelaide.

The Ruling of the Trial
    Judge

[14]

The trial judge
    found and listed several deficiencies in the ITO for the warrant for 306
    Adelaide.  She expressed her conclusion in these terms:

Based on the amplification evidence and the deficiencies
    referred to above, I am persuaded that there was no objective basis for the
    belief that there were reasonable grounds to associate Mr. Sadikov with the 2
nd
floor unit of 306 Adelaide and that narcotics would be found in that location. 
    The warrant must therefore be quashed.

[15]

The trial judge
    then turned her attention to the admissibility of the several items found in
    the second-floor apartment at 306 Adelaide when the warrant was executed. 
    Drugs.  A fully-loaded handgun.  Money.  She considered the infringement
    serious and the impact on the
Charter
-protected interests of the
    respondent significant.  Although societys interest in the adjudication of
    allegations of serious crime on the merits favoured admission of the evidence,
    a proper balancing of all the factors mandated exclusion.  The case for the
    Crown on the counts that depended on this evidence collapsed.

The Grounds of Appeal

[16]

The appellant
    advances two related grounds of appeal.  The first focuses on the procedure the
    trial judge followed in determining whether the searches in issue were
    constitutionally infirm.  The second alleges that the trial judge exceeded the
    scope of permissible review of the search warrant issued for 306 Adelaide.

[17]

The central
    theme common to both grounds of appeal is the effect of the trial judges
    decision to deny Sadikov leave to cross-examine the affiant of the ITO that
    formed the basis upon which the warrant to search 306 Adelaide was issued.  The
    effect of such a ruling, according to the appellant, is to foreclose an inquiry
    into sub-facial validity of the warrant. But here, despite the ruling, the
    trial judge engaged a sub-facial review that went beyond the bounds of what is
    permitted according to the authorities.


Ground #1:  The Procedural Irregularity

[18]

As mentioned, at
    trial, Sadikov sought leave to cross-examine the affiants whose ITOs
    constituted the evidentiary basis on which the
CDSA
warrants to search
    306 and 302 Adelaide were issued.
[2]
The trial judge refused leave.  A brief reference to the basis of the
    application and of the refusal will help to put the claim of procedural error
    in its proper setting.

The Basis of the
    Application for Leave to Cross-examine

[19]

D/C Evelyn
    testified and gave evidence about the time of his observations of a man who
    looked like Sadikov walking toward and then entering 306 Adelaide on October 6,
    2008.  After that testimony, counsel for Sadikov sought leave to cross-examine
    the affiant who swore the ITO for the warrant for 306 Adelaide and several
    sub-affiants.  The principal basis for the application was the discrepancy
    between D/C Evelyns time estimate and the time reported by the affiant, based
    on information provided by the undercover officers and others engaged in
    surveillance, as to when Sadikov left the Club for 306 Adelaide on October 6,
    2008.

[20]

The application
    for leave to cross-examine the affiant took place during the
voir dire
on the warrantless entry and search of 302 Adelaide.  Counsel on both sides
    referred to passages in the preliminary inquiry transcript and in the notes of
    undercover officers, the affiant and other officers who made observations at or
    near 306 Adelaide on October 6 and 15, 2008, that linked Sadikov to the address
    and two pitbulls that apparently live there.

The Ruling of the Trial
    Judge

[21]

The trial judge
    concluded that, despite some internal inconsistencies in the notes of the
    officers, and between their notes and the contents of the ITO, leave to
    cross-examine should be refused.  She reasoned:

I am not satisfied that cross-examination of the affiant will
    support the inference that the affiant knew or ought to have known that
    information in the ITO was false.  Taking into consideration the entirety of
    the Information to Obtain as it relates to the person referred to as Alex and
    Mr. Sadikov, I am not satisfied that leave to cross-examine the affiant is
    necessary for Mr. Sadikov to make full answer and defence.  It follows that
    leave to cross-examine the sub-affiants is not necessary.

The Arguments on Appeal

[22]

For the
    appellant, Mr. Devlin says that the starting point for the analysis is the
    presumptive validity of the search warrant and the truth of the contents of the
    ITO on the basis of which it was issued.  The only way to defeat these
    presumptions, he contends, is to challenge the honesty and integrity of the
    affiant directly.  Leave to cross-examine the affiant is the threshold that
    must be met in order to attack the presumptively-truthful ITO.

[23]

What happened
    here, Mr. Devlin argues, is that the trial judge blurred the line between
    facial and sub-facial challenges to search warrants.  Apart from circumstances
    that do not arise here, there must be at least a limited cross-examination of
    the ITO affiant if a sub-facial challenge is to be made.  After all, a
    sub-facial attack challenges the truthfulness of the ITO the affiant submitted
    to the authorizing judge.  Absent an order granting leave to cross-examine, the
    trial judge was not entitled and should not have proceeded to conduct a sub-facial
    review and make findings of sub-facial deficiency.

[24]

Mr. Devlin
    submits that the principles of fairness also precluded the trial judge from
    making adverse findings against the affiant without having heard the affiants
    evidence.  These principles are akin to those that animate the rule in
Browne
    v. Dunn
(1894), 6 R. 67 (H.L.). Once leave to cross-examine the affiant
    had been refused, the trial judge was precluded from making findings against
    the affiants credibility and integrity or against the truth of the contents of
    the ITO.  The manner in which the trial judge proceeded denied the Crown
    recourse to amplification as a rehabilitative mechanism.

[25]

For Sadikov, Mr.
    Derstine takes the position that the refusal of leave to cross-examine the
    affiant does not preclude sub-facial review of the ITO or the making of adverse
    findings in connection with its contents or the truthfulness and integrity of
    its affiant.  Refusal of leave to cross-examine the affiant simply means that
    if a claim of sub-facial validity is to succeed, it must be on some evidentiary
    basis other than what might be elicited on cross-examination of the affiant.

[26]

Mr. Derstine
    says that it was Crown counsel who adduced D/C Evelyns contradictory evidence
    about the time observations were made on October 6, 2008.  The evidence was
    admitted on the
voir dire
initiated by the Crown in an attempt to
    legitimize the warrantless entry and search of 302 Adelaide on the basis of exigent
    circumstances.  It was open to the Crown to call other evidence about the
    timing of the observations on the
voir dire
, but Crown counsel decided
    not to do so.  Thus, the evidence on the warrantless entry
voir dire
was available for use on a sub-facial attack on the warrant for 306 Adelaide.

[27]

Mr. Derstine
    contends that the fairness principles that underpin the rule in
Browne v.
    Dunn
exert no influence here.  The rule applies to counsel who propose to
    adduce evidence that contradicts what a witness for an adverse party has said. 
    Such a rule does not apply to a fact-finder in circumstances such as the
    present.

[28]

For Harding, who
    did not participate in any challenge to the constitutional integrity of the
    searches at trial, Mr. Harris queries whether the procedural error the
    appellant asserts raises a question of law alone.  If it does, he adopts Mr.
    Derstines submissions on the merits.

The Governing Principles

[29]

Several
    principles inform the decision on this ground of appeal.



The Requirement of a voir dire

[30]

A
voir dire
is held to determine the admissibility of evidence proposed for admission by a
    party to a criminal proceeding:
R. v. Parsons
(1977), 17 O.R. (2d)
    465 (C.A.), at p. 469, affd [1980] 1 S.C.R. 785.  On the
voir dire
,
    it is for the trial judge to determine whether the conditions precedent to the
    admissibility of the proposed evidence have been met.  The
voir dire
is a separate proceeding from the trial proper and the evidence taken on a
voir
    dire
forms no part of the evidence at trial unless the parties expressly
    agree to its incorporation:
R. v. Erven
, [1979] 1 S.C.R. 926, at p.
    932;
R. v. Darrach
, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 66;
R.
    v. Dela Cruz
, 2007 MBCA 55,
220
    C.C.C. (3d) 272, at para. 24; and
R. v. Gauthier
, [1977] 1 S.C.R. 441,
    at p. 454.

[31]

Each
    admissibility issue warrants a separate inquiry or
voir dire
.
[3]
It seems logically to follow from the very nature of a
voir dire
as a
    separate proceeding that evidence adduced on one
voir dire
does not,
    without more, become evidence on another
voir dire
held to determine a
    different admissibility issue.

The Procedure on a voir dire

[32]

The manner in
    which a
voir dire
is to be conducted is left to the discretion of the
    presiding judge, and is not subject to rigid or pre-fabricated rules.  Relevant
    factors include, but are not limited to, the nature of the issue under
    consideration and of the case itself, as well as the means of proof available:
R. v. Kematch
, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 43.  See
    also Rule 34.01 of the
Criminal Proceedings Rules

for the Superior
    Court of Justice (Ontario)
, (
Criminal Proceedings Rules
).

[33]

In many
    instances, evidence proposed for admission may implicate more than one
    admissibility rule.  In prosecutions for unlawful homicide, for example,
    statements the deceased has allegedly made to others, expressing fear of the
    accused and recounting incidents of actual or threatened violence, may engage
    both the hearsay and bad character rules.  A police interview of the accused
    may be challenged on voluntariness and constitutional grounds.  It is
    commonplace to conduct a single
voir dire
to determine admissibility
    in these cases and a prudent use of judicial resources to do so.  That said,
    presiding judges must be scrupulous to ensure that their rulings respect
    differing burdens and standards of proof and reflect an informed understanding
    of the governing admissibility rules:
R. v. Voss
(1989), 50 C.C.C.
    (3d) 58 (Ont. C.A.), at pp. 79-80.

The Warranted Search voir dire

[34]

Admissibility
    challenges occur frequently where Crown counsel seeks to adduce evidence, real
    evidence, of things found and seized during a search of a person, place, or thing. 
    Real evidence, like items found and seized during a search, which meets the
    standards of relevance and materiality, is
prima facie
admissible. 
    And this remains so whether the investigative conduct that yielded the evidence
    is lawful or unlawful.

[35]

Challenges to
    the admissibility of real evidence seized during a search involve a two-step
    inquiry.  Because the criminal trial process cares about the constitutionality
    of state conduct that produces evidence that the Crown proposes to introduce in
    a criminal prosecution, the first step is an inquiry into constitutionality. 
    The second step, reached only after a demonstration of a constitutional
    infringement, is an inquiry into the admissibility of the evidence obtained by
    the infringement.  Both inquiries impose an onus on the person who claims
    unconstitutional conduct and seeks exclusion of the evidence obtained by it.  The
    standard of proof required is proof on a balance of probabilities.

[36]

In trials in the
    Superior Court of Justice, an accused who seeks exclusion of evidence alleged
    to have been obtained by a constitutional infringement is required to comply
    with Rule 31 of the
Criminal Proceedings Rules
.  The Rule promotes
    constructive use of judicial resources and avoids surprise by requiring, among
    other things, a written application that contains a precise, case-specific
    statement of the basis and grounds upon which exclusion is sought, a detailed
    summary of the evidence or other material upon which reliance is placed, and a
    statement of the manner in which the applicant proposes to introduce the
    evidence.  Challenges to the constitutionality of warranted searches may
    involve either or both a facial and sub-facial attack on the authorizing
    warrant.  No reason in principle requires a separate
voir dire
for
    each mode of attack, although many prefer a discrete hearing for each.

[37]

A facial
    validity challenge requires the reviewing judge to examine the ITO and to
    determine whether, on the face of the information disclosed there, the justice
could
have issued the warrant:
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R.
    992, at para. 19.  The record examined on a facial review is fixed:  it is the
    ITO, not an amplified or enlarged record:
R. v. Wilson
, 2011 BCCA
    252,
272 C.C.C. (3d) 269,
at para. 39.

[38]

Sub-facial challenges
    go behind the form of the ITO to attack or impeach the reliability of its
    content:
Araujo
, at para. 50; and
Wilson
, at para. 40.  Sub-facial
    challenges involve an amplified record, but do not expand the scope of review
    to permit the reviewing judge to substitute his or her view for that of the
    authorizing judicial officer:
Araujo
, at para. 51; and
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452.  The task of the reviewing
    judge on a sub-facial challenge is to consider whether, on the record before
    the authorizing justice as amplified on the review, the authorizing justice
could
have issued the warrant:
Araujo
, at para. 51; and
Garofoli
,
    at p. 1452.  The analysis is contextual:
Araujo
, at para. 54.  The
    reviewing judge should carefully consider whether sufficient reliable
    information remains in the amplified record, in other words, information that
    might reasonably be believed, on the basis of which the enabling warrant could
    have issued:
Araujo
, at para. 52.

[39]

One method of
    attacking the reliability of the content of the ITO is to cross-examine its
    author, the affiant.  An accused does not have an absolute right to
    cross-examine the affiant.  Leave to cross-examine is required.  And leave is
    not granted, just for the asking:
Garofoli
, at p. 1465; and
R. v.
    Pires; R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 3 and
    31.  To obtain leave to cross-examine the affiant, an accused must show that
    the proposed cross-examination will elicit testimony that tends to discredit
    the existence of a pre-condition to the issuance of the warrant, as for
    example, reasonable and probable grounds:
Garofoli
, at p. 1465; and
Pires;
    Lising
, at para. 40.

[40]

The proposed
    cross-examination may be directed at the credibility or reliability of the
    affiant.  But cross-examination that can do nothing more than show that some of
    the information relied upon by the affiant is false is not likely to be useful
    unless an applicant can raise an inference that the affiant knew or ought to
    have known that the information was false:
Pires; Lising
, at para.
    41.

[41]

Refusal of leave
    to cross-examine the affiant removes any evidence that might have been elicited
    on cross-examination from what an applicant may rely upon to attack the
    reliability of the content of the ITO on a sub-facial review.  The applicant
    remains free, however, to adduce other relevant and material evidence,
    admissible on the inquiry into sub-facial validity, in an attempt to show,
    based on the amplified record, that no sufficiently reliable information
    remains on the basis of which the warrant could have issued:
Pires; Lising
,
    at para. 32.

The Principles Applied

[42]

In support of his
    claim that a new trial should be ordered on the basis of procedural error in
    the conduct of the review of the search warrant issued for 306 Adelaide, Mr.
    Devlin makes two specific complaints.  The first is that the trial judge was
    wrong to quash the warrant for sub-facial invalidity once she refused Sadikov
    leave to cross-examine the affiant.  The second is that the principle that
    animates the rule in
Browne v. Dunn
precludes any findings adverse to
    the credibility of the affiant and the reliability of the information he
    provided in the ITO.

[43]

As I will
    briefly explain, I would not give effect to either of these specific
    complaints.

[44]

First, refusal of
    leave to cross-examine the affiant does not foreclose a challenge to the sub-facial
    validity of the warrant.  Several reasons support this conclusion.

[45]

Cross-examination
    of an affiant is a means to achieve an end, not the end in itself.  The
    cross-examiner seeks to obtain evidence, the affiants answers to the questions
    asked, to challenge the reliability of the information provided by the affiant
    in the ITO on the basis of which the warrant was issued.  To obtain leave to
    cross-examine, the applicant must show a reasonable likelihood that the
    proposed cross-examination will elicit evidence that tends to discredit the
    existence of a condition precedent to the issuance of the warrant:
Garofoli
,
    at p. 1465;
Pires; Lising
, at paras. 3 and 40; and
R. v. Mahal
,
    2012 ONCA 673, 113 O.R. (3d) 209, at para. 38, leave to appeal to S.C.C.
    refused, [2012] S.C.C.A. No. 496.  Refusal of leave to cross-examine the affiant
    precludes the availability of evidence that might be elicited on
    cross-examination as a source of evidence to impeach the reliability of the
    information contained in the ITO.  However, refusal of leave to cross-examine
    the affiant does not deprive the applicant of the right to advance a sub-facial
    challenge to attack the reliability of the ITO, only of the use of evidence
    that might have been elicited in cross-examination of the affiant to do so.

[46]

Consider an
    analogy to proof of fact X at trial.  A party tenders an item of evidence to
    prove fact X.  But the trial judge rules the proposed evidence inadmissible
    because it is hearsay that does not fall within a listed or the principled
    exception.  This ruling does not disentitle the party to prove fact X; it
    only requires the party to do so by some method of proof other than what has
    been rejected as hearsay.

[47]

Nothing in the
    controlling jurisprudence expressly or by necessary implication supports the
    proposition that refusal of leave to cross-examine the affiant precludes a sub-facial
    challenge to the reliability of the contents of the ITO.  Indeed, a canvass of
    those precedents would seem to support a contrary conclusion:  see e.g.
Pires;
    Lising
, at para. 32.

[48]

Second, reliance
    by analogy on the principles that underpin the rule in
Browne v. Dunn
is misplaced.

[49]

What is termed
    the rule in
Browne v. Dunn
 is a principle designed to provide
    fairness to witnesses and parties.  It requires counsel to give notice to those
    witnesses whom the cross-examiner intends later to impeach.  However, it is not
    a fixed rule:  the extent of its application resides within the discretion of
    the trial judge.  Whether, or to what extent, the rule will be applied depends
    on the circumstances of each case:
R. v. Giroux
(2006), 207 C.C.C.
    (3d) 512 (Ont. C.A.), at para. 42, leave to appeal to S.C.C. refused, [2006] 2
    S.C.R. viii.

[50]

The so-called
    rule in
Browne v. Dunn
is a rule for cross-examining counsel to follow
    when counsel proposes to impeach a witness account of events later by
    introduction of contradictory evidence.  While counsels failure to follow the
Browne
    v. Dunn
rule may resonate in a trial judges findings of fact at the end
    of the trial, neither the rule nor any analogy to it prohibits findings of fact
    adverse to a witness credibility absent compliance with
Browne v. Dunn
.

[51]

I would not give
    effect to the claim of procedural error on either basis advanced by the
    appellant.

Ground #2:  The Scope of Warrant Review

[52]

The second
    ground of appeal involves a complaint of substantive error.  The appellant says
    that the trial judge exceeded the scope of permissible warrant review. To
    determine whether this ground of appeal should succeed or fail, it is necessary
    to expand upon the evidentiary and procedural background discussed earlier and
    make reference to critical portions of a trial judges ruling.

The Warrant for 306
    Adelaide

[53]

A provincial
    court judge issued a s. 11
CDSA
warrant authorizing a search of the
    south-facing second-floor apartment at 306 Adelaide.  In the ITO, the affiant
    swore that he had reasonable and probable grounds to believe that controlled
    substances or precursors of them, offence-related property, and things that
    would afford evidence of offences under the
CDSA
were in the
    apartment.  The warrant authorized a search for and seizure of controlled
    substances (including, but not limited to cocaine), packaging materials, debt
    lists, and police buy-money provided to Sadikov on earlier listed dates.

[54]

The warrant was
    issued on October 17, 2008, and authorized execution from 12:01 a.m. to 6 p.m.
    on October 20, 2008.

The Information to
    Obtain

[55]

Detective
    Stephen Henkel, a member of the Vice Section of the Major Crime Unit at 52
    Division was the lead investigator into the drug activities at Club 338.  He
    was the affiant in the ITO for both Club 338 and 306 Adelaide.

[56]

The ITO
    described in detail various aspects of the undercover operation at Club 338,
    including rampant drug use and consumption taking place overtly in the presence
    of security and other club staff.  The ITO described three drug purchases made
    by an undercover officer from a man who identified himself as Alex and who is
    alleged to be Sadikov.

[57]

To link Sadikov
    to 306 Adelaide, the ITO made reference to several factors:

i.

Alexs comments to the undercover officer that he lived or kept his
    drugs nearby or at home;

ii.

Alexs comments to the undercover officer about having, and on one
    occasion, playing with his dogs, together with surveillance evidence of two pitbulls,
    in the window of the second-floor at 306 Adelaide and of Alex on the steps with
    the dogs; and

iii.

Alexs agreement to sell drugs to an undercover officer shortly after 3
    a.m. on October 6, 2008, his remark that I keep it at home, observations of
    his leaving Club 338, walking towards and entering 306 Adelaide, and of his
    return to Club 338 with drugs about 50 minutes after he first left.

The Evidence on the
voir dire

[58]

On the
voir
    dire
on the warrantless entry and search of 302 Adelaide, Crown counsel called
    the officers who had participated in the warrantless entry in an attempt to
    demonstrate that the entry and search were reasonable because they occurred in
    exigent circumstances.  Among the witnesses was D/C Evelyn whose assignment was
    conducting surveillance on the premises at 306 and 308 Adelaide on October 5-6,
    2008.

[59]

D/C Evelyn
    testified that he received information over the police radio on October 6, 2008,
    that a man was leaving Club 338 to obtain drugs to complete a sale to the
    undercover officer.  D/C Evelyn made no note of the time he received this
    information. He then saw a man fitting Sadikovs description walking along
    Adelaide towards 306 Adelaide.  The man entered 306 Adelaide, but D/C Evelyn
    did not note the time of entry.  The officer did not see the man leave 306
    Adelaide, but heard a later radio report that confirmed that he (the man) was
    back at the Club.

[60]

D/C Evelyn
    acknowledged uncertainty about the time of his observations of this man.  He
    knew that it was after 1:00 a.m., the time he began his observations.  He
    finally settled on 1:10 a.m., which he admitted was a bit of a guess.

[61]

According to the
    ITO, the undercover police officer did not arrive at Club 338 until 1:50 a.m. 
    Sadikov left the Club at 3:07 a.m. and returned at 3:56 a.m.

[62]

No objection was
    taken to the evidence of D/C Evelyn about his observations on October 6, 2008. 
    The evidence was admitted on the warrantless entry and search
voir dire
in connection with 302 Adelaide.  That entry took place two weeks later, on
    October 20, 2008.

The Ruling of the Trial
    Judge

[63]

The trial judge
    quashed the search warrants for both 306 and 302 Adelaide.  Only the decision
    in connection with the warrant for 306 Adelaide is an issue here.

[64]

The trial judge described
    her task in these terms:

My task is to determine whether the decision of the judicial
    officer is one she could reasonably and judicially have reached in the exercise
    of discretion to issue the warrant.  I must not focus on isolated passages but
    refer to all data within the four corners of the ITO.  I must not undertake a
    word by word dissection but rather a common sense review.

[65]

The trial judge
    agreed with the submission of defence counsel that the ITO contained mistakes,
    misleading information, conclusory statements, and material non-disclosures. 
    She noted that two factors tended to connect Alex to 306 Adelaide:

i.

the dogs at 306 Adelaide; and

ii.

the proximity of 306 Adelaide to Club 338.

Both factors were important because of what Alex told
    the undercover officer at Club 338:  he had two dogs  pitbulls  and he kept
    his drugs at his home, which was nearby.

[66]

The trial judge
    concluded that nothing in the ITO supported the conclusion that the dogs seen
    at 306 Adelaide were Sadikovs dogs, or that the dogs had been seen together on
    more than one occasion.  The presence of Sadikov on the street with the dogs
    did not link him to the second-floor apartment.

[67]

The trial judge
    rejected the reference to lived close by as providing a link between Alex
    and the second-floor apartment at 306 Adelaide as his drug depot.  The judge
    pointed out:

i.

the first reference to lived close by came from Adam, not Alex;

ii.

there was no basis for the undercover officers assertion that during a
    preliminary call to set up the second sale, Alex
reminded
the
    officer that he lived nearby;

iii.

the undercover officers initial description of Alex did not fit
    Sadikovs appearance;

iv.

the delay in connection with the September 15, 2008 undercover sale is
    inconsistent with the assertion that Alex lived close by; and

v.

the ITO omitted material facts about the surveillance observations on
    October 6 and left a false impression about the identity of the person seen
    entering 306 Adelaide and the time of the entry.

[68]

The trial judge
    expressed her conclusion about the validity of the warrant for 306 Adelaide in
    these terms:

Based on the amplification evidence and the deficiencies
    referred to above, I am persuaded that there was no objective basis for the
    belief that there were reasonable grounds to associate Mr. Sadikov with the 2
nd
floor unit of 306 Adelaide and that narcotics would be found in that location. 
    The warrant must therefore be quashed.

The Arguments on Appeal

[69]

For the
    appellant, Mr. Devlin begins with a reminder that a search warrant review is a
    very narrow exercise.  The ultimate issue is whether, after excising any
    information that should not have been before the issuing judge, there remains a
    basis upon which the warrant
could
have issued.

[70]

In this case, Mr.
    Devlin says, the trial judge exceeded the bounds of permissible review by
    reweighing the evidence that was in the ITO, rejecting available inferences,
    and failing to apply the proper test for warrant review.  The reasonably
    grounded belief that a search at 306 Adelaide would provide evidence of a drug
    offence was established when Sadikov left Club 338 to obtain drugs, walked to
    and entered 306 Adelaide, then returned to the Club with the drugs to complete
    the transaction.  The ITO made it clear that more than one officer observed
    Sadikov en route from Club 338 to 306 Adelaide.

[71]

Mr. Devlin
    argues further that the trial judge failed to consider D/C Evelyns testimony
    about the timing of his observation on October 6, 2008, in its proper context. 
    D/C Evelyn admitted that his estimate of the time of his observations was a
    guess.   What was uncontroversial was that D/C Evelyns observations were made
    after Alex  Sadikov  left Club 338 to obtain drugs to complete a sale to
    the undercover officer.  The undercover officer did not
arrive
at Club
    338 until 1:50 a.m. and radioed Sadikovs departure at 3:07 a.m., his return at
    3:56 a.m.

[72]

Mr. Devlin says
    that the trial judge erred in discounting or rejecting the link between Sadikov
    and 306 Adelaide based on his comments to the undercover officer about having pitbulls
    and living nearby.  That the pitbulls at 306 Adelaide belonged to Sadikov and
    that he was associated with the second-floor apartment at that address were
    reasonable inferences available to the authorizing judge.  It was no part of
    the trial judges mandate to substitute her own inferences for those available
    to the authorizing judge, rather her only mandate was to determine whether
    those drawn by the authorizing judge were reasonable.

[73]

For Sadikov, Mr.
    Derstine says that the trial judge made no errors in her warrant review.  She
    described and applied the proper test.  That she found deficiencies in the ITO
    does not mean that she improperly reweighed its contents.  She based her review
    on the record that was before the authorizing judge, less any erroneous or
    misleading information that was properly excised, and supplemented by any
    material through permissible amplification.

[74]

Mr. Derstine
    submits that the warrant review also takes into account the affiants
    obligation to make full and frank disclosure of all material facts and permits
    the trial judge to consider whether the authorizing judge was misled by
    exaggerations, half-truths, and material omissions.  All were present here and
    were properly taken into account by the trial judge on warrant review.

[75]

Mr. Derstine
    contends that a consideration of the ruling as a whole refutes any claim that
    the trial judge was unfaithful to the applicable standard of review.  Neither
    the dogs nor the travel from Club 338 to 306 are capable of satisfying the
    reasonable grounds standard in connection with the second-floor apartment.  No
    one identified the dogs at 306 Adelaide with the dogs shown to the undercover
    officer on Sadikovs cell phone.   The reference to living nearby or keeping
    drugs nearby could not assist since the initial reference, of which all others
    were derivative, came from Adam, a person who was not and could not be
    mistaken for Alex.

[76]

Mr. Derstine
    adds that the appellant cannot complain about the absence of amplification of
    the record before the authorizing judge.  Crown counsel did not seek to amplify
    the record before the trial judge and cannot now complain that this failure to
    permit what was not sought reflects error.  In the end, Mr. Derstine says, the
    appellants complaint is with the factual findings made by the trial judge. 
    Each finding was supported by evidence and untainted by legal error.  Nothing
    advanced by the appellant raises a question of law alone, or, if it does,
    warrants appellate reversal.

[77]

For Harding, who
    did not participate in the warrant review at trial, Mr. Harris reiterates the
    submissions of Mr. Derstine.  He emphasizes the failure of the Crown at trial
    to tender evidence to amplify the record and questions whether either ground of
    appeal advanced by the appellant raises the question of law alone within the
    jurisdiction at this court under s. 676(1)(a) of the
Criminal Code
.


The Governing Principles

[78]

The search at
    306 Adelaide was conducted under the authority of a warrant issued under s.
    11(1) of the
CDSA
.  In the ITO, the affiant alleged that he had
    reasonable and probable grounds to believe and did believe that there was a
    controlled substance or precursor, a thing in which a controlled substance or
    precursor was contained, offence-related property, or a thing that would afford
    evidence of a
CDSA
offence in the second-floor, south-facing apartment
    at 306 Adelaide.  The warrant authorized a search for:

i.

controlled substances or their precursors;

ii.

packaging materials and equipment;

iii.

debt lists; and

iv.

police buy-money.

[79]

Two groups of
    principles control the decision on this ground of appeal.  The first has to do
    with the standard to be met for the issuance of a
CDSA
search
    warrant.  The second is concerned with the standard to be applied on review of
    the warrant.

The Standard for Issuance of Section 11 CDSA
    Warrants

[80]

A justice to
    whom an
ex parte
application for a search warrant is made under s.
    11(1)
CDSA
must be satisfied by the contents of the ITO that there are
    reasonable grounds to believe that:

i.

a controlled substance or precursor in respect of which the
CDSA
has
    been contravened;

ii.

anything in which a controlled substance is contained or concealed;

iii.

offence-related property; or

iv.

anything that will afford evidence in respect of a
CDSA
offence
    or a related proceeds crime

is in a place described in the warrant.

[81]

The statutory
    standard  reasonable grounds to believe  does not require proof on the
    balance of probabilities, much less proof beyond a reasonable doubt.  The
    statutory and constitutional standard is one of credibly-based probability:
Hunter
    v. Southam Inc
., [1984] 2 S.C.R. 145, at p. 167; and
R. v. Law
, 2002 BCCA 594
, 171 C.C.C. (3d) 219, at
    para. 7.  The ITO must establish reasonable grounds to believe that an offence
    has been committed and that there is evidence to be found at the place of the
    proposed search:
Hunter
, at p. 168.  If the inferences of criminal
    conduct and recovery of evidence are reasonable on the facts disclosed in the
    ITO, the warrant could be issued:
R. v. Jacobson
(2006), 207 C.C.C.
    (3d) 270 (Ont. C.A.), at para. 22.

[82]

The authorizing justice
    makes his or her decision about whether to issue the warrant from the evidence
    included in the ITO as a whole, approaching the assessment on a common sense,
    practical, non-technical basis.  The justice, like the trier of fact at a
    trial, is also entitled to draw reasonable inferences from the contents of the
    ITO:
R. v. Vu
, 2013 SCC 60, at para. 16;
R. v. Shiers
, 2003 NSCA
    138, 219 N.S.R. (2d) 196, at para. 13; and
Wilson
, at para. 52.

The Standard for Warrant Review

[83]

Warrant review
    begins from a premise of presumed validity:
Wilson
, at para. 63; and
R.
    v. Campbell
, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, affd 2011 SCC
    32, [2011] 2 S.C.R. 549.  It follows from this presumption of validity that the
    onus of demonstrating invalidity falls on the party who asserts it, in this
    case, Sadikov.

[84]

The scope of
    warrant review is narrow.  The review is not a
de novo
hearing of the
ex
    parte
application.  The reviewing judge does not substitute his or her
    view for that of the issuing judge:
Garofoli
, at p. 1452;
R. v.

Ebanks
, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal
    to S.C.C. refused, [2010] 1 S.C.R. ix; and
R. v.

Morelli
,
    2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.  The standard 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:
Morelli
, at para. 40.  Said in another way, the test
    is whether there was reliable evidence that might reasonably be believed on the
    basis of which the warrant could  not would  have issued:
Morelli
,
    at para. 40;
Araujo
, at para. 54; and
Garofoli
, at p. 1452.

[85]

The reviewing
    court does not undertake its review solely on the basis of the ITO that was
    before the issuing judge.  The reviewing court must exclude erroneous
    information included in the original ITO, but may also consider, within limits,
    additional evidence adduced on the
voir dire
to correct minor errors
    in the ITO.  Amplification evidence corrects good faith errors of the police in
    preparing the ITO, but does not extend to deliberate attempts to mislead the
    authorizing judge:
Morelli
, at para. 41; and
Araujo
, at
    para. 58.  Evidence relied upon to amplify the record must be evidence
    available to investigators at the time the ITO was sworn, not information
    acquired later:
Morelli
, at para. 43.

[86]

Warrant review
    is an integral part  a first step  in an inquiry into admissibility of
    evidence proposed for reception.  It is not a trial and must not take on the
    trappings of a trial in which the truth of the allegations contained in the
    indictment is explored:
Ebanks
, at para. 21.  In establishing the
    record for the purposes of review, what is to be excised from the ITO is
    information that is erroneous, not information that is correct, or information
    that contradicts other information, or information with which the reviewing
    judge does not agree:
Ebanks
, at para. 21.

[87]

Warrant review
    requires a contextual analysis.  Inaccuracies in the ITO, on their own, are not
    a sufficient basis on which to ground a finding of bad faith or an intent to
    mislead, much less to provide a basis on which to set aside the warrant:
Araujo
,
    at para. 54.  The existence of fraud, non-disclosure, misleading evidence, and
    new evidence are all relevant but are neither a prerequisite to, nor
    dispositive of, the review:
Garofoli
, at p. 1452; and
Ebanks
,
    at para. 20.

[88]

It is no part of
    the reviewing judges mandate to determine whether she would issue the warrant
    on the basis of the amplified record.  Nor is it the reviewing judges role to
    draw inferences, or to prefer one inference over another.  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:
Morelli
, at para. 40.

[89]

A final point. 
    An appellate court owes deference to the findings of the reviewing judge in her
    assessment of the record as amplified on the review and her disposition of the
    s. 8 application.  Absent an error of law, a misapprehension of evidence, or a
    failure to consider relevant evidence, an appellate court should decline to
    interfere with the reviewing judges decision:
Ebanks
, at para. 22; and
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18,
    leave to appeal to S.C.C. refused,
150 C.C.C.
    (3d) vi
.

The Principles Applied

[90]

For reasons that
    I will develop, I would give effect to this ground of appeal.  In my view, the
    trial judge exceeded the permitted scope of warrant review, thus erred in law
    in quashing the warrant, and in holding that the things seized under the
    warrant were obtained in a manner that breached Sadikovs rights under s. 8 of
    the
Charter
.

[91]

The warrant
    review in this case required an inquiry of whether, on the amplified record,
    there remained reliable evidence that might reasonably be believed on the basis
    of which the warrant could, not would, have issued:
Morelli
, at para.
    40.

[92]

No real issue
    emerged here about the sufficiency of the ITO to establish reasonable and
    probable grounds for the belief that an offence involving controlled substances
    had been committed.  The ITO included uncontradicted evidence of at least three
    drug sales by Sadikov to an undercover police officer.

[93]

The warrant
    review here was reduced to a determination of whether the information contained
    in the amplified record, considered as a whole, could support a belief, based
    on reasonable and probable grounds, that evidence would be found in the second-floor,
    south-facing apartment at 306 Adelaide on execution of the warrant.  This
    determination was to be made on an assessment of all the facts on the same
    practical, non-technical, common sense basis that was applied by the
    authorizing judge.  Provided the evidence in the amplified record was
    sufficient to support a reasonable inference of evidentiary discovery, the
    warrant could have issued and the application to set it aside should be
    dismissed.  The very existence of errors or omissions in the ITO, even material
    errors or omissions, is not dispositive on review.  The crucial issue is the
    capacity of what remained to satisfy the standard required.

[94]

The cumulative effect
    of four errors satisfies me that the trial judges decision to quash the
    warrant for 306 Adelaide cannot stand.

[95]

First, although
    early in her reasons the trial judge articulated the correct test for warrant
    review, read as a whole, her reasons fail to demonstrate its proper
    application.  In the end, the trial judge never did determine whether the
    amplified record
could
support a reasonable inference that evidence in
    connection with a drug offence would be found at the time and place of the
    proposed search.

[96]

Second, the
    trial judge identified several errors in the ITO in connection with two
    factors that tended to link Sadikov to the address  its proximity to Club 338
    and the presence of two pitbulls  but failed to consider the evidence about
    each factor as a whole in reaching her conclusion.

[97]

Third, the trial
    judge considered each factor discretely, rather than, as required, in
    combination.  At the very least, there was evidence that Alex, who told the
    undercover officer that he had two dogs  pitbulls  was Sadikov, a person who
    was associated with two pitbulls, the same number and breed of dog seen outside
    and in the window of the second-floor, south-facing apartment at 306 Adelaide.

[98]

The trial judge
    appears to have dismissed the proximity link on the basis of the discrepancy
    between D/C Evelyns evidence about the time he saw a man fitting Sadikovs
    description walk along Adelaide and enter 306 and the time at which other
    officers made the same observations.  What is clear from the ITO is that more
    than one surveillance officer made the same observation that was triggered by a
    telephone call from the undercover officer that Alex had left the Club to get
    the drugs for the arranged purchase.  The undercover officer did not arrive at
    the Club until nearly 2:00 a.m. and alerted surveillance officers about
    Alexs departure at 3:07 a.m.  D/C Evelyn had no notes of the time and
    acknowledged it was a guess that he made his observations at 1:10 a.m.

[99]

Finally, it may
    also be open to question whether the evidence of D/C Evelyn, given on the
voir
    dire
on the warrantless search at 302 Adelaide but not, so far as I can
    determine, incorporated by reference into the review of the warranted search at
    306 Adelaide, should even have formed part of the evidence of the latter.

[100]

A
voir dire
, even a
voir
    dire
in a judge-alone trial, is a separate proceeding from the trial
    itself:
Gauthier
, at pp. 451-452.  Evidence taken on a
voir dire
forms no part of the evidence at trial unless the parties expressly agree to
    its incorporation:
Erven
, at p. 932;
Darrach
, at para. 66;
Dela
    Cruz
, at para. 24; and
Gauthier
, at p. 454.

[101]

The issues in play in each
voir
    dire
determine the evidence that is relevant, material, and admissible in
    that proceeding.  But without express incorporation of the evidence adduced on
    one
voir dire
as evidence on another, the evidence on the first
    inquiry is not available for use in the later
voir dire
.  It follows
    that reliance on evidence that has not been adduced or incorporated by a
    reference on a
voir dire
into admissibility may compromise the
    admissibility ruling.  Disciplined application of Rules 30 and 31 of the
Criminal
    Proceedings Rules
ensures that the evidentiary predicate on each
    admissibility inquiry is clearly and properly defined and rulings on
    admissibility are made in accordance with the correct governing principles.

[102]

In the end, the reasons of the
    trial judge reflect a
de novo
reweighing and preferential ordering of
    inferences, an exercise that was beyond her authority.

CONCLUSION

[103]

For these reasons, I would allow
    the appeal, set aside Sadikovs acquittal and order a new trial on the charges
    originating in the items seized at 306 Adelaide.  The same result should follow
    for Harding, who did not participate in the warrant review at trial, but took
    advantage of the admissibility ruling that falls with the setting aside of the
    order finding the search unconstitutional.

Released: (J. MacF.)  January 27, 2014

David Watt J.A.

I agree.  J. MacFarland J.A.

I agree.  Gloria Epstein J.A.





[1]
Sadikov was convicted of trafficking and related proceeds counts arising out of
    the drug sales to the undercover officer at Club 338.  Harding was not charged
    in those counts.



[2]
It appears that the ITO for the warrant for Club 338 was the same as that for
    306 Adelaide.  Sadikov did not challenge the warrant for Club 338.  He lacked
    any standing to do so.



[3]
As I explain later, a consolidated
voir dire
may be held to determine
    the admissibility of evidence challenged on several grounds.


