Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
J. Smith, for the Crown
— And —
Ravwisankar Wicknesvaran & Sinthugan Wicknesvaran
P. Connolly, T. Sarantis, for the defendant(s)
Heard: May 14, 2013
FELDMAN J.:
Introduction
1Ravwisankar Wicknesvaran and Sinthugan Wicknesvaran are jointly charged with 4 counts of Possession of a Credit Card Forgery Device, 10 counts of Possession of a Credit Card Obtained by Crime, 10 counts of Fraudulently Possessing Credit Card Data and one count of Fail to Comply with Recognizance.
2Based upon information received from a purported confidential source, Toronto police were issued and executed a search warrant on the two accused's parent's home and it is alleged discovered the devices capable of use in the copying of credit cards and credit card data used to produce fraudulent credit cards that form the basis of the criminal charges that are the subject of these proceedings. Counsel for the defendants submit that in executing what they submit is a flawed warrant the authorities have infringed their clients' Charter s. 8 rights. They say the Justice of the Peace ought not to have issued the search warrant because the information provided by the source and contained in the Information to Obtain [ITO] as redacted to protect his identity is insufficient to warrant process.
3In the event a breach is found, the defence seeks exclusion of any evidence obtained pursuant to s. 24(2).
Informant Principles
4The right to search premises, particularly a home, is "a powerful and potentially oppressive tool of the state". It is of fundamental importance that there be reasonable disclosure made of the information used to obtain a search warrant and that the accused know the basis upon which the warrant was issued: R. v. Hunter, at para. 44.
5At the same time, there is a long-standing rule against disclosure of information which might identify the informer rooted in "acceptance of the role of the informer in the solution of crimes and the apprehension of criminals", one that recognizes, as well, that concealing identity is necessary for the protection of the informant and "to encourage others to divulge to the authorities any information pertaining to crimes": Hunter, at para. 11; see also R. v. Leipert.
6The role of the affiant is to make full and frank disclosure in the context of the competing principles of accounting for the importance of informers to society while making available to the accused enough information to enable a court to determine whether reasonable and probable grounds for issuance of a warrant has been demonstrated: Hunter, at para. 46.
The ITO
7In relation to the alleged offences, the affiant sought permission to search the defendants' home for a printer, card embossers and white blank cards with magnetic stripes, all alleged to be for use in forging credit cards.
8The ITO contains redacted information from the confidential source that makes reference to Ravwisankar's nickname as 'Rawi' and provides a physical description of him with what appears to be reasonable accuracy. He advises that 'Rawi' runs with a street gang but provides no confirming evidence. He alleges that the defendant sells fake credit cards and various fake identification cards out of 7 Walden St. in Scarborough and is said to drive a two-door white BMW.
9The source told the police that he has been to 7 Walden St a number of times and has purchased fake credit cards from 'Rawi' there in the past. He paid in cash. He indicated he has never seen 'Rawi' without fake credit cards and identifications. He said he would order identification or credit cards for purchase from 'Rawi' who would produce them upon request. He told the affiant that 'Rawi' will sell a credit card for approximately $20 and identification, such as drivers licenses, which he also creates, for $120.
10At the home, the informant says he has observed a box containing several hundred blank white cards with a magnetic stripe on the back that are used by 'Rawi' to put on data for the informant and other clients. He says 'Rawi' creates these cards using different printing machines and embossers. The defendant is able to digitally print credit card images on the blank cards.
11The confidential source described the outside of 7 Walden and its proximity to certain major intersections in the town of Markham. He says 'Rawi' lives there with his family and has access to the entire house. He believes there are a high number of fraudulent credit card sales per day because 'Rawi' is one of the only people the informant currently knows who has his own credit card writer. This is apparently a skill hard to come by. When he last attended the defendant's home the source saw equipment used in the creation of fake credit cards, as well as blank cards.
Police Investigation
12Police databases indicate that Rawisankar Wicknesvaran has had 21 contacts with the police since 2005. Rawisankar was charged with Assault Causing Bodily Harm and Threaten Bodily Harm on Jan. 8, 2012. He gave the address of 7 Walden St. The charges were withdrawn after the issuance of this warrant.
13As well, Rawisankar was driving a two-door 328 series BMW on Jan. 18, 2011, when he was stopped and charged with speeding. His brother, Sinthugan, who is the registered owner of the vehicle, was a passenger at the time.
Police Corroboration
14The source's description of the house and its location and of the BMW, as well as the provision of the nickname and Rawisankar' physical attributes were confirmed by police investigation, all important but peripheral matters.
15The affiant says that the confidential source has proven reliable in the past but provides no information in support of this assertion. The affiant states that the source has been involved in fraudulent crimes using credit card data and identification; that he is a confidential informant of the Toronto Police Service and as such enjoys informer privilege; that he is seeking monetary gain for this information; and that he has not yet received consideration for any of this information and understands none will be given should the results of the investigation not be substantiated.
16Significant portions of the ITO have been blacked out to minimize the chance of revealing the identity of the informant. There is almost no detail provided about the informant's personal circumstances.
Positions of the Parties
Position of the Defence
17Mr. Connolly, for Rawisankar Wicknesvaran, submits that the redacted ITO provides insufficient credible or reliable evidence to permit the issuing Justice of the Peace to have found the reasonable and probable grounds to believe an offence had been committed and that evidence of an offence would be found during the search.
18He says the information upon which the affiant relies is insufficiently specific. For example, the Justice of the Peace would not know when, how many times or how recently the confidential source had been to the house. Also, the affiant offers only a conclusory statement, without confirming evidence, that the informant has proven reliable in the past. In short, he says there is too much reliance on suspicion and conjecture.
19Mr. Sarantis, for Sinthugan Wicknesvaran, submits there is very little mention of his client in the ITO. He points out that there is a lack of detail about what was happening inside 7 Walden St.
20Counsel submit that the search based on this warrant breaches their clients' Charter s. 8 rights and that the evidence obtained during the search should be excluded under s. 24(2). They submit that the infringement is serious as it involves the search of a residence. They say the impact on the privacy interests of the accused is significant and negatively affects the long-term repute of the justice system.
Position of the Crown
21Mr. Smith, for the prosecution, submits that the information in the ITO is sufficiently compelling and credible and is corroborated by the police's investigation. He notes that it has been confirmed that the accused live at 7 Walden St. with their family. He says the confidential source provides first-hand knowledge of the devices at that location with which fraudulent credit cards have been made and can continue to be produced there. In fact, he points out that the informer says he has purchased fraudulent credit cards from 'Rawi' at this address and provided the price for the cards and identification documents.
22The Crown submits, as well, that the affiant's disclosure of elements of the informant's character that impact negatively on his credibility has been full and frank in a manner that necessarily shields his identity.
23In the event a breach is found, Mr. Smith fairly concedes that the unlawful search of a home seriously impacts the Charter-protected rights of the accused, but submits it is important in the analysis that the police acted in good faith in its preparation of the ITO and that it is in the public interest that this serious matter be tried on its merits.
The Authorities
24In R. v. Rocha, 2012 ONCA 707, Rosenberg J.A., following the requirements articulated by Lamer J., as he then was, in R. v. Debot, held that the test for the sufficiency of an ITO that is based on an informer's tip is dependent upon whether the tip is compelling, the informer is credible and the tip confirmed by independent police investigation.
25In Debot, in analyzing the sufficiency of the information provided by a confidential source, Justice Lamer indicated that these criteria are not to be viewed separately, but rather the approach to be taken is that set down by Martin J.A. in the Court of Appeal judgment of considering whether the "totality of circumstances" meets the standard of reasonableness.
26In addition, Justice Martin suggested that weaknesses in one area may, to some extent, be compensated by strengths in the other two. Finally, to be compelling, the information must be sufficiently specific and not take the form of bald conclusory statements in order to support the conclusion that there are reasonable grounds an offence has been committed and a search warranted.
Does the ITO as Redacted Meet the Debot Criteria?
27The ITO failed to inform the issuing Justice of the Peace much if anything of the background or criminal antecedents of the confidential source, although it discloses that he was no stranger to the fraudulent use of credit cards and was seeking monetary gain for turning on his purported supplier, in that sense disclosing relevant aspects of his character. As well, some but little reliance can be placed on the affiant's statement that as a confidential informant of the Toronto Police Service the source has proven reliable in the past without his having provided more information in support of that assertion. These are weaknesses in the criteria analysis in the context of the affiant's effort to minimize the chance of revealing the source's identity, although the affiant was frank in making known the criminal inclinations of the informer that allegedly brought him into contact with the accused. Although understandable in being mindful of the risk of exposing his source's identity, it is unhelpful to the prosecution's position that the affiant chose to provide no informational support to the statement that the informant has in the past proven reliable.
28At the same time, as noted earlier, the authorities indicate that in relation to the sufficiency of the ITO weakness in one area may be compensated by strengths in the other two areas. In this regard, there is information that the informer has been to the home of the accused multiple times and purchased fraudulent credit cards and identification produced for him on request. He details the prices. He claims to have personally observed the devices and material used in the production of these items. He offers the information that the accused is currently one of few suppliers with his own card writer. He suggests the defendant is never without fraudulent cards or identification.
29This is potentially compelling information if sufficiently credible. Both defence counsel suggest this information could be stale. Yet to be specific about dates for these transactions would as a matter of common sense risk identifying the source. In light of this, I am of the view that in the context of all the information, it is open to accept the implication that the informer's observations and descriptions indicate recency. It is open to be inferred that the devices would be present in the home the accused shared with their parents as part of an ongoing business. This is somewhat compelling information.
30In this regard, it is significant, as Justice Rosenberg pointed out in Rocha, at para. 22, that the police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that that level of confirmation is not required.
31In Rocha, the informer had personally observed drug transactions at the defendants' family restaurant and detailed where the drugs were stored, the type of packaging and how they were obtained for clients. These were more than conclusory statements or rumour. Information concerning the credibility of the informer was weak. The police investigation confirmed the address and layout of the interior of the restaurant and the involvement of the accused and his brother in the restaurant, information that it was held could not be disregarded. In view of the totality of circumstances and the compelling nature of the tip, the ITO predicting the presence of drugs was found to be sufficient.
32These factors bear on a consideration of the information provided in the case at bar. On peripheral matters relating to physical description of the accused, his residence and access to it, the car he drove and some personal antecedents, the information provided by the source was borne out by the police investigation. The informer's information about his own business relationship with the accused and his observations of the production devices present in the house were fact specific and of a compelling nature. There was frank, if less than full, disclosure of the informant's criminal antecedents, lifestyle and motivation to inform on his associates. The affiant described him as a confidential police informer.
33The sufficiency of the information provided in the redacted ITO is close to the line. But in all the circumstances, I am persuaded that the information available to the Justice of the Peace was sufficient to infer reasonable and probable grounds that a search of the residence would provide evidence of ongoing criminal offences involving the production and sale of fraudulent credit cards and identification.
34In the result, the s. 8 application is dismissed.
The s. 24(2) Application
35In the event I am in error, I would dismiss the application under s. 24(2) to exclude the evidence and find, under a Grant analysis, that its admission would not bring the administration of justice into disrepute in the long-term sense of maintaining the integrity of, and public confidence in, the justice system: see R. v. Grant, 2009 SCC 32, at para. 68.
36Grant indicates that the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system under the following lines of inquiry, including the seriousness of the Charter-infringing conduct, the impact of the breach on the applicant's Charter-protected interests and society's interest in the adjudication of the case on its merits.
37In the event it were determined that weaknesses in the disclosure here fell below constitutional standards, it would reflect a breach close to the line that would, in my view of all the circumstances, be at the low end of the "continuum of misconduct" referred to by Doherty J.A. in R. v. Blake, 2010 ONCA 1, at para. 23. The affiant appears to have acted in good faith in attempting the delicate balance of protecting a confidential source while providing less than full information to the receiving judicial officer. In these circumstances, the degree of seriousness of the breach in the sense of the long-term harm to the administration of justice would be reduced.
38At the same time, there is a high expectation of privacy in one's family residence. The negative impact on the applicants' privacy interest is serious and favours exclusion. Finally, society's interest in an adjudication on the merits would be impaired were the reliable and important evidence in this case to be excluded.
39In the event of a breach, a balancing of these factors in the circumstances here, given my earlier analysis of the disclosure in the ITO, favours admission of the evidence that would not in the result do harm to the repute of the administration of justice.
Released: July 3, 2013
Signed: "Justice L. Feldman"