This week’s top three summaries: R v Payne, 2025 NSCA 10: s.8 #warrant review, R v Ozeir, s.9 individual #grounds and R v Trepanier, 2025 ONSC 1200: #principled exception
R v Payne, 2025 NSCA 11
[February 20, 2025] Charter s.8: Search Warrant Review: Identification of the Suspect [Reasons by Beaton J.A. with Van den Eynden and Derrick JJ.A concurring]
AUTHOR’S NOTE: Police have extensive resources to identify suspects, including databases with photos, property records, and prior contacts linked to phone numbers or addresses. In many cases, this makes suspect identification non-contentious. However, in this case, when drafting the Search Warrant, police vetted a name provided by a confidential informantbut then only stated conclusively that the vetted name was the accused—without explaining the basis for this conclusion. As a result, the issuing justice had no way to assess whether the vetted name was merely a variant or an entirely different person. The trial judge excised this unsupported assertion from the warrant, a decision upheld by the Court of Appeal, leading to an acquittal.
[1] Hassan Ozeir is charged with possession of Schedule I substances for the purpose of trafficking and three counts of possession of proceeds obtained by crime. The charges arise from an investigation by the Ottawa Police Drug Unit which culminated in the arrest of the Applicant on October 20, 2021.
[2] The Applicant argues that police lacked reasonable and probable grounds to arrest him, and when they did so and seized half a kilogram of Fentanyl and 19 oxycodone pills along with about $2,600 in cash, and a single pregabalin pill; that they breached his right not to be arbitrarily detained under s 9 of the Charter and his right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter. The Fentanyl and Oxycodone pills were in a satchel not worn by the Applicant, but by Mr. Haidar, who was a passenger in the vehicle driven by the Applicant.
The Facts of the Case:
[4] In the summer of 2021 Yousef Ozeir’s drug dealing near his home in a quiet Orleans suburb in the city of Ottawa attracted complaints from neighbouring residents to the Ottawa Police Service. Yousef Ozeir sported a distinctive “man bun” hairstyle which was noted by residents of the neighborhood. His white Infiniti vehicle was observed by his neighbors who provided police with the plate number, and the tipsters provided police with the Ozeir address of 1757 Silver Bark Avenue.
[9] …The judge next concluded the subsequent ITO, used to secure the Production Order, could not meet the reasonable and probable grounds test required for its issuance. Flowing from that, the ITOs that resulted in the authorization of warrants to search the respondent’s residence, vehicle, storage locker and two cell phones were found by the judge to be insufficient, as they did not meet the requisite reasonable and probable grounds test for issuance.
[14] The chronology of events that framed the respondent’s dispute with the ITOs on the Garofoliapplication were recounted by the judge:
[25] The ITOs all included information from the same two confidential sources (“A” and “B”). One of the areas modified by the affiant related to the information provided by Source A. That modification was the focus of argument. Other modifications were less significant but are relevant to whether they disclose a pattern of strategic and misleading edits.
[26] In her ITO sworn on September 2nd, the affiant stated that Source A provided information to Cpl. Andy Bezanson, the Source’s handler, about “vetted name” (Tab 1, para. 19). It is agreed that the name vetted from the ITO is not “Joshua Payne” or a variant of that name and that Source A did not use the name “Joshua Payne” or a variant of that name when the source reported information to Cpl Bezanson (Ex. 2). In the ITO, the affiant then stated that Cpl. Bezanson was able to determine that “vetted name” is Joshua David Maxwell Payne and set out the steps he took to arrive at that conclusion (para. 19).
[27] In her ITO sworn on November 18th and all subsequent ITOs, in each case where she reports information provided by Source A to Cpl. Bezanson, she substituted the name Joshua Payne or variants such as “Josh”, “Payne” etc. for “vetted name” (Ex. 2; and, see for example, Ex. 1, Tab 2, para. 22).
[28] She also removed the paragraph explaining how Cpl. Bezanson had determined that “vetted name” was Joshua Payne.
(i) The ITOs
[17] A reviewing judge who is satisfied that an ITO suffers from deficiencies can consider whether and how to resolve them. In R. v. Morelli, 2010 SCC 8, the Supreme Court of Canada discussed two of the options to resolving deficiencies, being excision or amplification of the ITO. Morelli concerned an ITO that was “carelessly drafted, materially misleading and factually incomplete” (para. 4). It was used in support of the search and seizure of a personal computer and its contents from a home, to further an investigation into possible child pornography-related offences. The Court described those options:
[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
A reviewing judge is imbued with a “broad discretion” as to whether to excise or amplify (R. v. Maric, 2024 ONCA 665 at para. 154).
[18] Early in her decision the judge identified options open to her when faced with a problematic ITO:
[18] Where an affiant has not made full and frank disclosure, a reviewing judge may choose to ‘correct’ the ITO to achieve that and then assess whether the issuing justice could have issued the warrant based on that corrected ITO. For example:
– Minor, inadvertent or technical errors made in good faith can be corrected through the process of amplification (Araujo, para. 59; Morelli, para. 41; and, Booth, para. 59);
– Erroneous information that should not have been in the ITO or that does not meet the requirements for amplification must be excised (Araujo, paras. 57 & 58; Morelli, para. 45; and, Booth, para. 58); and,
– Where material facts are omitted that might have detracted from the grounds, the omitted information can be, essentially, ‘read in’ by the reviewing court (Morelli, para. 60; and, R. v. Paryniuk, 2017 ONCA 87, para. 45).
[19] However, in some cases, an affiant’s errors or omissions are so egregious and subversive to the pre-authorization process that a reviewing judge may declare the warrant invalid, regardless of whether it could have been issued had there been full and frank presentation of the information (Morris, para. 92; R. v. Paryniuk, 2017 ONCA 87, para. 45, leave to appeal dismissed [2017] SCCA 81; and, Booth, paras. 64 – 65). This residual discretion to invalidate a warrant on review was described by Cromwell, J.A. (as he then was), in Morris, para. 92:
Fraudulent or deliberately misleading material in the information does not automatically invalidate the warrant. However, it may have this effect if the reviewing judge concluded, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated…
[19] Before the judge, the Crown relied on R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 and R. v. Feizi, 2022 ONCA 517 to argue the substitution by the affiant (as described at para. 14 herein) was “unfortunate”, but not erroneous or misleading, and would have led to the same result had the ITO been differently drafted.
[21] In the respondent’s case, the judge viewed the affiant’s lack of full and frank disclosure as “more significant” than was found to be the case in both Plant and Feizi. The judge distinguished the inaccuracies in the ITOs used in those cases from the situation before her, where she was of the view “the affiant’s misrepresentation could reasonably have misled the JPs in a way that improved the grounds.”
[23] Her reasons reflect the judge clearly understood the implications of the question of the affiant’s intent for the case before her. She said:
[53] The question of bad faith versus good faith turns on the affiant’s intent. There is a range of possibilities. At one end, a finding that she deliberately misrepresented the information with the intent to deceive or mislead the JP to improve her grounds would amount to bad faith. At the other end, a finding that she was simply attempting to edit her ITO to make it more concise without intent to deceive or improperly strengthen her grounds would not amount to bad faith (see Plant, p. 298-299). However, the latter finding would not necessarily amount to good faith for amplification purposes. As the Supreme Court said in Morelli, “[c]oncision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure” (para. 58).
[54] The Defence did not seek leave to cross-examine the affiant and the Crown did not seek to call her for the purpose of amplification. As a result, I have no direct evidence of what was in the affiant’s mind when she edited the ITO. The only evidence is in the documents themselves and the ASF.[1] So, I have to determine whether the Applicant has established bad faith and whether the Crown has established good faith based on the inferences I can draw from that evidence.
[24] When the judge examined the changes made by the affiant between the (first) tracking warrant ITO and those that followed, and their effect, she was prepared to attribute the differences to “careless drafting and inattention” rather than an effort by the affiant “to deceive or mislead”. The judge found the affiant had been “at the very least careless” in presenting accurate information and thus “was not properly focused on her duty to make full and frank disclosure”. The cumulative impact of that early tracking warrant ITO deficiency on each successive ITO led to the judge’s conclusion “the affiant was generally careless in her preparation” of each of them.
[25] The judge explained her concern that the issuing judge had been presented with information in which the affiant made the “bald conclusory statement” that the “vetted name” was the respondent’s name, without providing reasons for that conclusion. The judge saw it as problematic that the issuing judge would have had no way of knowing the affiant’s statement was conclusory, because the issuing judge would have understood from the affiant that Source A had in fact used the respondent’s name, which was not the case. [PJM Emphasis]
[27] Having concluded the erroneous use of the respondent’s name was information that had to be excised from the later ITOs, the judge turned to consideration of whether the Crown could amplify the evidence (as was done in Plant and Feizi) by including information found in the first ITO for the tracking warrant.
[28] The judge did not accept the affiant’s error was “minor and technical”. While she was satisfied it was not made in bad faith, she was not persuaded it had been made in good faith. She found the affiant had been “negligent toward her duty to make full and frank disclosure” and that “[s]he should have known that she could not depose that Source A had named the subject of the investigation when that was not the case”. On that basis, the judge declined to permit correction of the erroneous information by amplification.
[30] There were differing standards in play for issuance of each type of warrant that was sought over the course of the investigation into the respondent. The judge correctly identified the tracking warrant required “reasonable grounds to suspect”, framed in terms of “possibilities rather than probabilities”, and that each subsequent warrant attracted the higher standard of “reasonable grounds to believe”, meaning “more than mere possibility or reasonable suspicion, but less than proof beyond a reasonable doubt”. The judge also recognized each ITO was to be assessed by viewing each piece of information found in it in the context of the ITO as a whole, to achieve the contextual analysis referred to earlier (para. 5).
[31] The judge was satisfied the tracking warrant met the requisite reasonable suspicion standard. As to each subsequent warrant, the judge noted the evidence of an offence came primarily from a Source whose details she interpreted as not having demonstrated direct knowledge, nor having provided corroboration. She concluded the revised record for each ITO subsequent to the tracking warrant did not contain sufficient credible and reliable information to support the reasonable grounds standard required for each of those warrants.
[32] The Crown had properly conceded before the judge that if either the tracking or production warrant was determined invalid, then evidence generated by them would of necessity be excised from the subsequently drafted ITOs used to secure warrants to search the respondent’s cellphones, storage locker, residence and vehicle.
[33] Consequent to that excision, the judge concluded the respondent’s s. 8 rights had been violated because:
[7] […] The affiant failed in her duty to make full and frank disclosure. While that failure was not sufficiently egregious to justify quashing the authorizations, it did require the excision of erroneous and misleading information. What remained was not sufficient to support the issuance of the authorizations to produce documents from the self-storage facility or to search the storage locker, Mr. Payne’s apartment, vehicle, and cell phones.
[34] The judge’s excision had effectively gutted the subsequent ITOs.
Issue 1 – Did the judge err in her treatment of the ITOs?
[48] R. v. Booth, 2019 ONCA 970, relied on by the judge, reminds us the requirement for “full and frank disclosure of material facts” required in Araujo reflects the ex parte nature of a warrant application and is a “corollary of the privilege of being the only party” providing evidence (para. 54). The respondent correctly observes that all the judge had before her was unsourced information from a single Source. Not knowing where the information came from, it was difficult for her to determine if it might be compelling. Since it would have been an error for the judge to simply assume that Source B was speaking from personal knowledge, it was important to look for corroboration because “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater” (Debotat page 1172). I see no error in the judge having approached her analysis as she did.
[49] The judge was properly focussed on whether what remained in each ITO met the requisite standard for its issuance. She concluded that even though the information from Source B rose to the level of credibly-based possibility, it could not rise to the level of credibly-based probability. I interpret her reasons as having assessed Source B’s evidence as a whole, while conscious of her inability to assess that person’s credibility.
[51] I agree with the Crown that following excision a reviewing judge must not apply a different test to each distinct portion of the evidence, as excision does not require greater scrutiny of what remains. That said, here the judge found the information provided by Source B to be problematic, and provided specific examples to explain why she took that view. That does not lead to an assumption she was engaged in a piecemeal weighing of the evidence. I read the judge’s decision as having taken a holistic view of the evidence before her, while providing examples of Source deficiencies to illustrate her assessment of the overall quality of the Source information.
[53] The Crown also says the judge placed improper focus on the affiant’s error, rather than on what remained in the Production ITO after excision. It frames the affiant’s error in placing Joshua Payne’s name in substitution for the vetted name as “minor”. With respect, that characterization seeks to have us ignore the judge’s factual determination, to which we must defer, that “the substitution of the name ‘Joshua Payne’ or a variant for ‘deleted name’ was erroneous and could reasonably have misled the issuing JPs”. I agree with the respondent’s submission the judge’s reasons illustrate she understood the review exercise required of her. This is demonstrated in her conclusion that “reasonable grounds to suspect” existed to justify the issuance of the tracking warrant, however “reasonable and probable grounds to believe” did not exist to justify issuance of the remaining warrants.
[54] The respondent reminds us that excision, to remove inappropriate material, and amplification, to augment or complete the record, are tools to “level the playing field” in an ex parte application such as a judicial authorization. He urges the Court to ignore the appellant’s “microscopic dissection” of the judge’s reasons. He asserts that post-excision, what the judge considered was a version of the ITOs which bore no resemblance to what had been put before the issuing judge.
[55] The judge’s reasons demonstrate her appreciation of the distinction in roles and the difference in the record as between her and the issuing judge:
[76] I must now assess the sufficiency of the grounds in the ITOs based on the revised record.
[77] My role as the reviewing judge is to review the revised record and determine whether there is a basis upon which an authorizing judge, acting judicially, could grant it (R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421). I am aware that, as the reviewing judge, I should not substitute my view for that of the authorizing judge (Garofoli, p.1452). However, in this case, the revised record has produced fundamentally different grounds so I have to consider whether the authorizations could have been issued on this record.
[56] In effect, this Court is being asked to substitute the Crown’s view of the nature and quality of the evidence, following excision, for that of the judge. With respect, that is not our role.
[57] I would dismiss this ground of appeal.
Issue 2 – Section 24(2) Charter analysis
[61] The Crown now wishes to argue the judge was wrong in her assessment of all three Grant factors, despite not having contested the significance of the second and third factors during the application before the judge.
[62] I need only observe the Crown cannot now put forward on appeal a different case than it advanced at trial (R. v. Barton, 2019 SCC 33 at para. 47). …
[66] The Crown also asks us to conclude the judge failed to take into account the differing privacy interests associated with each location that was the subject of a warrant. Concerning the production warrant, it says the focus should have been on the nature of the privacy invasion that would have been permitted by its issuance. Given the car had a low privacy expectation, the locker had a low privacy expectation[2] and the apartment had a high privacy expectation, the Crown maintains the judge should have considered each of those warrants separately, owing to the differing privacy interests.
[70] The judge’s reasons in this case are cogent and thorough. Her identification of the law and guiding principles is not disputed by the appellant. The judge’s analyses of the issues justify her conclusions and do not disclose error. Where the judge exercised her discretion, deference is owed.
[71] With respect, I am not persuaded the Crown’s dissatisfaction with the outcome of the respondent’s application before the judge equates to judicial error. There is no basis for appellate intervention. I would dismiss the appeal.
R v Ozier, 2025 ONSC 570
[February 10, 2025] Charter s.9: Reasonable Grounds Attach to Individual Suspect and the Importance of Police Notes [Anne London-Weinstein J.]
AUTHOR’S NOTE: In multi-party drug investigations, police sometimes group multiple suspects together, failing to establish individualized grounds for arrest or search. This case highlights that courts, unlike police, must assess each suspect individually under the Charter. Here, police lumped the accused in with his brother, but when the brother’s grounds were removed, the accused’s arrest was purely speculative. Additionally, in testimony about the final takedown, the lead officer claimed he had identified the accused early in the investigation, but his notes did not support this, and other officers confirmed they were never given a surveillance target sheet for the accused. The judge found this testimony unreliable, leading to the exclusion of a significant quantity of narcotics.
[1] Hassan Ozeir is charged with possession of Schedule I substances for the purpose of trafficking and three counts of possession of proceeds obtained by crime. The charges arise from an investigation by the Ottawa Police Drug Unit which culminated in the arrest of the Applicant on October 20, 2021.
[2] The Applicant argues that police lacked reasonable and probable grounds to arrest him, and when they did so and seized half a kilogram of Fentanyl and 19 oxycodone pills along with about $2,600 in cash, and a single pregabalin pill; that they breached his right not to be arbitrarily detained under s 9 of the Charter and his right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter. The Fentanyl and Oxycodone pills were in a satchel not worn by the Applicant, but by Mr. Haidar, who was a passenger in the vehicle driven by the Applicant.
The Facts of this Case:
[4] In the summer of 2021 Yousef Ozeir’s drug dealing near his home in a quiet Orleans suburb in the city of Ottawa attracted complaints from neighbouring residents to the Ottawa Police Service. Yousef Ozeir sported a distinctive “man bun” hairstyle which was noted by residents of the neighborhood. His white Infiniti vehicle was observed by his neighbors who provided police with the plate number, and the tipsters provided police with the Ozeir address of 1757 Silver Bark Avenue.
[6] In that role, he handled community complaints which often related to drug trafficking or drug complaints. He had spent well over 200 hours surveilling drug traffickers as part of the drug squad. Although he described his work experience as still growing at the time of this investigation, he had been the lead officer two or three times prior to this case. The informants in this case were not coded at the start of this case.
[7] On July 23, 2021, he reviewed a tip from a confidential source that a Lebanese male with a thick build and a man style ponytail was often observed leaving 1757 Silver Bark Avenue to meet with different individuals and vehicles for short periods of time near his house, or in a park located across the street from 1757 Silver Bark Avenue. The male would also meet with vehicles while driving a white Infiniti with license plate CFNB 523. This description fit Yousef Ozeir.
[9] The background check revealed that Yousef Ozeir was suspected by police of being involved in gang activity including trafficking drugs. He had been stopped several times recently in the white Infiniti and police in-house records showed he was associated to others who police believed to be involved in gang activity and drug trafficking. One of those in-house records involved his car breaking down in November of 2020 in the ByWard Market.
[10] Police who dealt with him that day noted he appeared nervous in their presence. Police observed small pieces of ripped up grey plastic in the car, consistent with drug trafficking. There were also perfume bottles by the driver’s door, cash in the front centre console and a black Coach satchel in the rear seat which belonged to Yousef. An equally nervous appearing passenger named Dillon was also in the car. Yousef said he was dropping Dillon off, but they contradicted each other as to where that drop off would be. Dillon beat a hasty retreat, leaving Yousef to await the arrival of his brother to assist him.
[34] A silver Honda pulled up and a male who was wearing a black hoodie, Adidas pants and who was described as heavyset exited 1757 Silver Bark Avenue. The male in the black hoodie entered the front passenger seat of the Honda and it drove away to a parking lot in a housing complex just west of nearby Barnabe Park. Police observed both the driver and the passenger in the front seat look down at the centre console. The man in the black hoodie then got out of the car and walked back to 1757 Silver Bark Avenue. Officer Binet observed and noted that the male in the black hoodie had a beard.
[35] The man was not identified on October 13th. However, in this voir dire Det. Tasoulis testified that he did his own research that evening and concluded that the man was, in fact, Hassan Ozeir. He has no note of this research, or which photo he viewed to make this identification. It was on October 13th after reportedly doing this research, that Det. Tasoulis said he regarded Hassan Ozeir as a target along with his brother Yousef based on his “identification” of Hassan Ozeir on October 13.
[36] However, I did not accept that Det. Tasoulis identified Hassan Ozeir on October 13th and that he was a target, along with his brother, at this point. My reasons for rejecting the officer’s evidence on this issue relate to his failure to make a note of this fact anywhere in his notes, and the fact that other team members testified at the preliminary hearing that they were not ever advised that Hassan Ozeir was a target, nor were they provided a photo of him, although Det. Tasoulis testified to the contrary. Officers noted being advised that Yousef Ozeir was the only target, his photo was received, and the white Infiniti was the only vehicle noted of interest on the surveillance briefing
[38] Police have a duty to make careful notes relating to an investigation. It is an integral part of their responsibilities. See: Woods v. Schaeffer, 2013 SCC 71. Inadequate note taking has been described as doing a disservice both to the accused and to the community. (Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Committee”), at pp. 151 and 153)
[39] More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78 as cited in Woods v Schaeffer, supra.
[40] The Supreme Court has indicated that police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation. The duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecution of charges.
[43] Given my concerns with the lack of notes, and also with credibility issues arising from Det. Tasoulis evidence regarding why Hassan Ozeir was not named as a target on the briefing sheet, and whether a photo of him was provided or not, I could not be satisfied on a balance of probabilities that Det. Tasoulis believed that the individual observed on October 13th was, in fact, Hassan Ozeir and not Yousef Ozeir, or even another member of the Ozeir family, such as Ali Ozeir. I note that on October 19th, the day police followed the GMC truck to Toronto, that they had initially mistaken Hassan Ozeir for Yousef Ozeir.
[44] No other activity consistent with drug trafficking was observed on October 13. Police then resumed surveillance on October 14th.
[46] Given the purpose of the investigation, and also from an officer safety perspective, I reject the notion that Hassan Ozeir was a target in this case in August, or September or October 13th or October 14th and Det. Tasoulis simply forgot to mention him to his team. …
[48] At 12:40 p.m. on October 14, a white male, wearing a grey hoodie and pants was observed next to the grey GMC pick-up truck with the license plate BK58448. The male was believed to be Hassan Ozeir, the brother of the target identified in the surveillance brief, Yousef Ozeir.
[49] A male in a grey Nissan, pulled up and parked near the house at 3:34 p.m. Police did not note the registered owner of the car. A male in a black Kia also pulled up. The registered owner of that car was not noted. The male who had been in the grey Nissan walked to Barnabe Park. He was on his cellphone. Three minutes later Hassan Ozeir also walked to the park. He was carrying a small dog in his arms. He and the male who had been in the Nissan walked in the park as they talked. They also appeared to be smoking as they walked through the park. The male who had been in the grey Nissan then left in his car at around 4 p.m. Hassan Ozeir walked back to his house, carrying his dog in his arms. Det. Tasoulis noted at 4 p.m. that the male with the dog was identified as Hassan Ozeir. At 4:10 p.m. Hassan Ozeir was inside 1757 Silver Bark Avenue. At 4:12 p.m. a woman entered the house. At 4:40 p.m. a man in a yellow shirt entered 1757 Silver Bark Avenue, stayed for three minutes and left as a passenger in a Hyundai.
[53] Hassan Ozeir sat down on the steps of the housing complex adjoining that parking lot. He was still carrying a small dog in his arms. A group of males joined him. Of the males who originally joined him, one left within five minutes in a car. Two more males arrived walking in the park. Another male left. They were clearly smoking something, possibly cannabis. Hassan Ozeir spoke to someone who was leaving in a Volkswagen. At 4:55 p.m. he then walked back toward his house along with a male he was conversing with. Hassan Ozeir was still carrying his little dog as he walked back to the residence at 1757 Silver Bark Avenue. From 4:50 p.m. until 5:10 p.m. Hassan Ozeir could be observed outside walking and talking with people who he appeared to know. Surveillance was terminated at 5:25 p.m. No transactions were observed.
[54] Police did not resume surveillance for another five days. As always, Det. Tasoulis began the surveillance briefing by indicating on the surveillance briefing form that Yousef Ozeir was the target, the 1757 Silver Bark Avenue address was the relevant address, and the white Infiniti was the associated vehicle to the investigation. Hassan Ozeir was not referenced, and no photo was provided of him.
[55] Det. Tasoulis said he planned to seek authorization for a search warrant for 1757 Silver Bark Avenue. In his evidence before this court he said that Hassan Ozeir was by this time now a target of the investigation and he wished to continue observation to see to what extent both subjects, that being Yousef and Hassan Ozeir were involved in these types of transactions. Police also wanted to have a clearer idea of who resided in the home.
[56] Both the white Infiniti and the grey GMC pick-up truck were parked in the laneway at about 1:05 p.m.
[57] A Kia pulled up and a man got out of it. He was on his phone. He went back into the driver’s seat of the Kia. A male who fit the description of Yousef Ozeir, who had a beard, hair tied up, wearing a grey sleeved shirt and jeans came out of 1757 Silver Bark Avenue and walked up to the front passenger seat of the Kia.
[58] Within a minute Yousef Ozeir walked away from the grey Kia and up the laneway of Silver Bark. The interaction was very brief.
[59] At 2:06 p.m. an unknown male exited 1757 Silver Bark Avenue and drove the grey pick-up truck away. At 2:11 p.m. a Santa Fe arrived in the laneway of 1757 silver Bark Avenue. Before 2:50 p.m. the grey pick-up truck drove back to 1757 Silver Bark Avenue and parked on the street in front of the residence. The front passenger of the pickup truck exited the truck. He wore a dark shirt and had a satchel across his chest. At this point, police believed that Yousef Ozeir was driving the truck. However, much later police would realize that the person they were observing was not Yussef Ozeir, but Hassan Ozeir. [PJM Emphasis]
[62] Det. Tasoulis said that the team decided to follow the vehicle thinking it was Yousef Ozeir that they were following. Det. Tasoulis thought that the locations that Yousef Ozeir may go to with the other two occupants might lead to further evidence, he said.
[66] No other individual was observed at the 706 Smyth Road address. No transaction was observed.
[69] The truck next stopped at a gas station on Carp Road to get gas. The truck then got onto Highway 417 and headed south on Highway 416. Police had not seen anything that could actually be described as a drug transaction but were suspicious of the three stops they observed.
[71] Det. Tasoulis said he believed that the trio might be driving out of town to engage in drug transactions, or that they might be looking to replenish their drug supply.
[74] Hassan Ozeir drove the grey pick-up truck to a Petro Gas station at 900 Progress Avenue. He got into the back seat and then back into the front seat. They stopped at a McDonald’s restaurant on Progress Avenue and the occupants got out and had a cigarette. They were there for about 24 minutes. They went to another parking lot nearby and went into a Naan Kabob restaurant.
[75] Another group of individuals met up with them and the group socialized for about an hour.
[76] The truck then headed back toward Ottawa. Hassan Ozeir was driving. They stopped twice at ONroutes on the way back to Ottawa for smoke breaks and to stretch their legs, arriving in Ottawa at about 4:30 a.m.
[77] Det. Tasoulis provided the team with their reasonable and probable grounds to arrest for possession of drugs for the purpose of trafficking in conjunction with Det. Renwick who was the more experienced officer. Det. Tasoulis had only been with the drug unit for a year and a half. The trio were arrested when they were back in the City of Ottawa at the Carling and Woodroffe Road area. Police seized over 500 grams of Fentanyl, 19 Oxycodone, a single Pregabalin pill and $2,600 in cash.
Issue 1: Did police have reasonable and probable grounds to arrest Hassan Ozeir?:
[78] Police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to a particular criminal activity and that such a detention is reasonably necessary in the circumstances. The standard “reasonable grounds to suspect” requires that police have a “reasonable suspicion” or a suspicion that is grounded in objectively discernible facts, which are capable of then being subjected to independent judicial scrutiny. R. v. Mann, 2004 SCC 52 at para 45; R. v. Williams, 2013 ONCA 772, at para 22-23.
[79] An officer facilitating an arrest requires the arresting officer to subjectively believe there are reasonable grounds on which to base the arrest, and that the grounds for arrest must be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at pp. 250-251; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para 21. Where grounds are based in whole or in part on confidential source information, the court must consider whether the information provided was compelling, whether the source was credible and whether the information was corroborated by police investigation. The totality of the circumstances must be considered by the court and weaknesses in one area may be compensated to some extent by strengths in the other two areas: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168.
[80] What is critical to the analysis of whether an arrest is objectively reasonable is not the number of incidents observed during police surveillance, but “the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighed through the perspective of the experience of the arresting officer”: R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289 at para 22. The question is not whether there could be an innocent explanation for each of the activities or interactions observed by the police. Rather, when considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation: R. v. Labelle, 2016 ONCA 110, at para 10; R. v. Bajich, 2019 ONCA 586.
[82] Section 495(1) (a) of the Criminal Code provides that a peace officer may arrest a person whom he believes has committed or is about to commit an indictable offence, but the peace officer’s belief is not determinative. The grounds for the peace officer’s belief are accorded some deference; but in order for a determination to be made as to whether an individual’s Charter right not to be arbitrarily detained has been infringed, the court’s function is to review the reasonableness of the peace officer’s belief when that belief is questioned. R. v. Quilop, 2017 ABCA 70, at para 10.
[84] In this case, police originally targeted Yousef Ozeir, the Applicant’s brother. The observations regarding Yousef Ozeir provide context to this investigation, particularly since both brothers are associated to the 1757 Silver Bark Avenue address. However, the transactions and the information which police observed which were consistent with drug trafficking and were attributable only to Yousef Ozeir do not add anything to the analysis as to whether reasonable and probable grounds existed for Hassan Ozeir. Having a brother who is engaged in drug trafficking at a residence to which a person is associated may arouse police suspicion that this individual is guilty by association, but suspicion alone does not meet the standard of reasonable and probable grounds. [PJM Emphasis]
[86] In reviewing the facts of this case, the court has looked at the entire constellation of facts to determine whether the constellation of factors support the conclusion that there existed a credibly-based probability that an indictable offence has been committed.
[87] In assessing the constellation of factors to determine whether there existed a credibly based probability that an indictable offence had been committed, the court had to contend with the credibility issues arising from the evidence of Det. Tasoulis. For example, the court did not accept aspects of Det. Tasoulis’ evidence regarding why Hassan Ozeir was never named as a target on the surveillance briefing sheet. The court did not accept that a photo of Hassan Ozeir was distributed to the team, as would have been done if he was a target, even if just for officer safety purposes. I found that it defied belief that police would find Hassan Ozeir to be a target by October 13th and never note him as a target on the surveillance briefing sheets on the 14th or the 19th. I have concluded that the reason he was not added is not because Det. Tasoulis made an error, but because Hassan Ozeir was not a target at that time.
[92] That being said, the officer’s subjective belief in reasonable and probable grounds must be objectively reasonable. The fact that these observations were made through the eyes of police does not convert objectively completely benign behaviour into suspicious behaviour. Reasonable and probable grounds, unlike beauty, do not exist merely in the eye of the beholder. The court’s role is to review the officer’s subjective belief to determine whether it was objectively reasonable.
[95] When Hassan Ozeir went to go and sit on the steps of the housing complex near his home, he is again clearly smoking with friends. They are chatting and smoking. There is nothing rushed, furtive or brief about the interaction. It is nothing like what tipsters said they observed, nor is it consistent with what police observed while conducting surveillance of Yousef Ozeir.
Components of reasonable and probable grounds:
[113] The observations by police of Hassan Ozeir on October 14th add nothing to reasonable and probable grounds against him in this case. While police are not required to consider innocent explanations for suspicious behaviour, in this case there was no suspicious behaviour. Hassan Ozeir, carrying his little dog walked through the park with his friends smoking what was likely cannabis. He sat down in a step in a townhouse complex near his home and close to Barnabe Park. I have reviewed the evidence of the two officers who testified on this voir dire, and the surveillance video from October 14th. I appreciate that police officers have years of field experience which the court lacks….
[116] I accept that police may have believed that the trip to Toronto was to re-up after they saw the other vehicle approach in the movie theatre parking lot and Mr. Haidar get out of the truck, enter the other vehicle and then get back in the truck. However, they could not consider the actions of Yousef Ozeir in assessing whether they had reasonable and probable grounds to arrest Hassan Ozeir, even as they were contemplating whether what they were watching was a re-supply. Police acted on a hunch and their suspicion which proved correct. [Emphasis by PJM]
[117] Police did not have reasonable and probable grounds to arrest Hassan Ozeir. While retroactively their hunch was proven correct, to the point of the re-up, there was no objectively reasonable basis to conclude that Hassan Ozeir was involved in drug trafficking. Up until October 19th, I am firmly of the view that police also watched him because he was seen coming out of 1757 Silver Bark Avenue and was associated to that address. He was not suspected of drug trafficking, which is why he was never named as a target and his photo was never distributed to the team.
Section 9 Guarantee:
[119] The principles governing the determination of whether an arrest violated s. 9 were reviewed in R. v. Amare, 2014 ONSC 4119per Hill J.
- An arbitrary arrest includes an unlawful arrest: R v. Grant, 2009 SCC 32 at paras 55, 57.
- An arrest is arbitrary and unlawful if the arresting officer does not have reasonable and probable grounds to believe that a subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1)
- Although it has been observed that the “onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention R v. Chehil, 2013 SCC 49 at para 45, it has generally been recognized that the onus is on the accused to demonstrate that his deletion was unlawful: R v. Hartley, 2013 ONCA 215 at para 14.
- Not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R v. Mackenzie, 2013 SCC 50 at pars 62-3, 83; R v. Storey (SCC), 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at pp. 250-1.
- In other words, the “reasonable grounds to believe standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 117.
- The fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable” R v. Biccum, 2012 ABCA 80 at para 21; See also R v. Luong, 2010 BCCA, 158 at para 19; Chehil, Supra at para 47.
- Reasonable and probable grounds do not involve a mathematical assessment of facts and circumstances but rather a common sense non technical approach. It is necessarily a qualitative standard upon which reasonable people can differ in some cases. R v. Campbell 2010 ONCA 588 (Ont. C.A.), at paras 52-4 (affidavit 2011 SCC 32 (CanLII) [2011] 2 S.C.R. 549; Chehil at paras 29, 62, 69; MacKenzie, at para 71; R v. Ward, 2012 ONCA 660 at para 116.
- That said, reasonable grounds is about probabilities (Chehil, at pars. 27-8; MacKenzie, at para 74, not confidence at the level of no reasonable doubt R v. Debit (1986), 1986 CanLII 113 ONCA, 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affidavit (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 S.C.C.) at pp. 198, 213, nor at the low threshold of mere suspicion or possibility (R. v.Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at para 37; R v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C>), at paras 43, 47.
- The standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly based probability replaces suspicion and possibility, does not demand that police officers always be correct, but that they always be reasonable” United States v. Clutter, 674 F. 3d 980, 983 (8th Cir. 2012)
- Reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond a balance of probabilities: Mugesera, at para 14; R v. Spence, 2011 BCCA 280 (CanLII) at para 31; R v. Loewen (2010), 2010 ABCA 255 (CanLII), 260 C.C.C. (3d) 296 (Alta.C.A.), at para 18 (affidavit 2011 SCC 21 (CanLII), [2011] 2 S.C.R. 167; R v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C> (3d) 270 (Ont. C.A.), at para 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)
- In assessing whether he or she has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203–the officer is not required to “undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras 34, 67.
- An officer’s training and experience may provide “an objective experiential …basis” for grounds of belief: Chehil at para 47, MacKenzie, at paras 6204, 73.
- A court reviewing the existence of reasonable grounds concerns itself only “with the circumstances known to the officers” R v. Wong, 2011 BCCA 13, at para 19 (leave to appeal denied [2011] S.C.C.A. No 90) (emphasis in the original)
- Provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.) at pp 206, 214. R.v. Amare, 2014 ONSC 4119 at para 83.
[120] In assessing the objective reasonableness of an arresting officer’s grounds for arrest when based on confidential source information, the court must consider whether the information provided was compelling, whether the source was credible and whether the information as corroborated by police investigation. The court must consider the totality of the circumstances, and weaknesses in one area may be compensated by strengths in the other two areas. R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (S.C.C.) at p. 1168. R. v. Bajich, 2019 ONCA 586 at para 9
[122] The question is not whether there could be an innocent explanation for each of the activities or interactions observed by the police. Rather when considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation. R v. Labelle, 2016 ONCA 110 (Ont. C.A.) at para 10, R v. Bajich, supra, at para 16.
Section 8 of the Charter
[126] In this case there were not reasonable and probable grounds to arrest Hassan Ozeir.
Section 24(2) Analysis:
[148] It may be that the average person who hears of this decision may wonder how police can be faulted after seizing half a kilogram of a deadly and illegal drug, preventing it from doing untold damage to residents of Ottawa in terms of drug deaths, furthering addiction, and even the gun violence that is associated to the trafficking of this type of drug in this quantity.
[149] In hindsight, the reader might conclude that police were correct to act on a hunch, given the seizure of half a kilogram of Fentanyl.
R v Trepanier, 2025 ONSC 1200
[February 21, 2025] Principled Exception to Hearsay: Relationship of the Declarant to the Deponent [Justice Holowka]
AUTHOR’S NOTE: The Crown’s principled exception application failed in this case. While the irrelevance of prior speeding on a different date was predictable, the reliability analysis is notable for defence counsel. The court focused on the ante-mortem statement of a passenger, assessing the relationship dynamics between her, the accused, and the deponent. Given the presence of other potential romantic partners, the court found that the possibility of a motive to misrepresent undermined the statement’s reliability. This concern was the key factor in rejecting the statement under the principled exception.
Overview
[1] Kyle Trepanier was involved in a motor vehicle collision on October 9, 2022. The sole passenger in his vehicle, Emma Roy, died from her injuries. Mr. Trepanier’s trial for criminal charges arising from this incident is scheduled for May 20-24 and July 2, 2025.
[2] The Crown seeks a ruling declaring that an ante mortem statement of Emma Roy made to Christopher Prieur on October 7, 2022, is admissible according to the principled exception to the hearsay rule as prior discreditable conduct.
a. Ms. Roy and Mr. Trepanier, on or about October 5, 2022, went for a car ride together in Mr. Trepanier’s Hyundai Genesis.
b. Mr. Trepanier was driving at an extremely fast speed of around 260 km/h.
c. Ms. Roy was fearful of the manner of Mr. Trepanier’s driving.
[5] I conclude that the evidence sought to be admitted by the Crown does not satisfy the requirements of threshold reliability. The content and circumstances of the making of the statement do not negate the possibility that the declarant was untruthful or mistaken. The Crown application is dismissed.
The Factual Background
[6] The factual allegations relied upon by the Crown are as follows:
a. On October 9, 2022, shortly after 9 pm, Mr. Trepanier was operating his motor vehicle westbound on County Road, east of Wendover, ON. Ms. Emma Roy was a passenger in the car sitting beside Mr. Trepanier.
b. Mr. Trepanier was driving in tandem with Mr. Trudeau, who was in his own vehicle.
c. Mr. Trepanier passed two vehicles that were also travelling westbound. He was travelling at a high rate of speed. One of the vehicles passed by Mr. Trepanier was the vehicle operated by Mr. Trudeau.
d. Shortly after passing Mr. Trudeau’s vehicle, Mr. Trepanier was involved in a head-on collision with a pickup truck. This truck was travelling eastbound towards Plantagenet. …
f. The police obtained a search warrant to download the data from the Engine Control Module (ECM) on the car driven by Mr. Trepanier. The pre-crash data retrieved indicated that the vehicle driven by Mr. Trepanier was travelling at a speed of 200 km/h when the collision occurred. Ms. Roy succumbed to her injuries after she arrived at the Montfort Hospital in Ottawa.
[7] Ms. Roy made a statement to Christopher Prieur on October 7, 2022—two days before the motor vehicle collision, about Mr. Trepanier’s driving. The Crown seeks to have this statement admitted for the truth of its contents at the upcoming trial.
[9] I make the following findings regarding the circumstances surrounding Ms. Roy’s statement:
a. Emma Roy and Mr. Prieur had known each other for about two years. They were in a relationship for about a year and a half. They were in love and had a confiding and trusting relationship—they told each other everything.
b. From August to September 2022, the relationship between Ms. Roy and Mr. Prieur began to deteriorate—it was no longer working. By October, the relationship was rocky.
c. On October 5th, 2022, Ms. Roy attended the Ottawa region. Mr. Prieur was not invited.
d. Upon her return from Ottawa, Mr. Prieur asked Ms. Roy to go for a drive. The two of them went for a drive in the Cornwall/Alexandria/Lancaster area during the early morning hours of October 7, 2022. The drive lasted between one to two hours.
[10] Mr. Prieur testified at the examination for discovery about the following aspects of conversation during the drive, evidence I accept on this application:
a. Ms. Roy was quiet the weekend she was gone. He described her as being “shady” during that time. Mr. Prieur stated that he wanted an in-person conversation regarding what was happening.
b. Initially, the conversation was about their relationship. He wanted to fix and work on the relationship, but Ms. Roy wanted to leave it. …
d. He asked Ms. Roy about her time in Ottawa and with whom she was hanging out. Ms. Roy stated that she had stayed at Jenny’s residence. She also told him that she hung out with friends, one of whom was Kyle Trepanier.
e. Without being prompted or questioned, Ms. Roy told him that she had gone on a car ride with Kyle Trepanier and that “apparently he was driving around 260 km/h.” She told him that she was scared while in the car. She stated that Mr. Trepanier was driving his Genesis.
f. Mr. Prieur said they were talking about Ms. Roy’s time in Ottawa and all of the people she had been hanging out with when she told him about Kyle Trepanier taking her for a ride in his car.
g. Mr. Prieur testified that Ms. Roy rarely got scared in a car—it shocked him to hear her say it.
[11] Mr. Prieur testified that he later discovered that Ms. Roy had been staying with Mr. Trepanier during her trip to Ottawa.
The Principled Exception
Analysis
[28] Evidence may only be admitted if it relates logically to an issue in the case. Regardless of whether it is in hearsay form, evidence is inadmissible if irrelevant. See R. v. Blackman, 2009 SCC 27, at para 29.
[29] I find that the proposed evidence of Ms. Roy’s ante mortem statement is not relevant. I do not accept that the evidence is necessary for the narrative. The events are understandable without Ms. Roy’s statement being admitted for the truth of its contents. I also do not accept that the proffered evidence of Mr. Trepanier’s driving on October 5, 2022, is relevant to his alleged driving behaviour on October 9, 2022, without engaging in propensity reasoning. Without engaging in propensity reasoning, it cannot be said as a matter of logic and common sense that the proffered evidence regarding his driving on October 5 makes it more likely that he was driving at a high rate of speed on October 9. [PJM Emphasis]
[30] For the same reasons, I do not accept that the ante mortem statement of Ms. Roy regarding Mr. Trepanier’s driving on October 5 is of assistance in assessing the credibility/reliability of witnesses concerning the events of October 9 or the validity of the pre-crash event data downloaded from Mr. Trepanier’s car following the collision.
[33] While the evidence is irrelevant at present, it may become relevant as the evidence develops at the trial. As such, I will assess the admissibility of the proffered statement considering the criteria of necessity and reliability.
[35] The reliability criterion must similarly be satisfied, on the balance of probabilities, by the party seeking admission of the hearsay statement. This requirement is usually met where the party seeking admission establishes that there is (a) no concern about the truth of the statement because of the circumstances in which the statement was made (substantial reliability), or (b) no real concerns arise from the hearsay statement because the circumstances permit testing of its truth and accuracy by means other than contemporaneous cross-examination (procedural reliability).
[36] The Crown concedes that given the nature and circumstances of the statement made by Ms. Roy to Mr. Prieur, no procedural reliability factors favour admission. I agree with this concession—there is no basis upon which to rationally evaluate the truth and accuracy of the hearsay statements based on traditional procedural safeguards such as recording the statement, an oath, or a warning about the consequences of lying.
Conclusion
[46] For the above reasons, the Crown’s application is dismissed.
