R. v. Mediati, 2019 ONCJ 197

ONTARIO COURT OF JUSTICE

CITATION: R. v. Mediati, 2019 ONCJ 197

DATE: 2019 04 03

COURT FILE No.: Brampton 16-934-01 and 16-934-02

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ANTONIO MEDIATI and SULTANA DINEFF

Before Justice A.R. Mackay

Heard on September 7 and October 19, 2018

Ruling released on April 3, 2019

Victoria Rivers counsel for the Crown

Sonya Shikhman counsel for the accused Antonio Mediati

Norm Stanford …………………………………. counsel for the accused Sultana Dineff

MACKAY J.:

I Introduction:

1The applicants are jointly charged with a number of drug related offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). The charges arose as a result of a search warrant executed on their home. The applicants challenged the validity of the warrant to search their home and to seize drugs found within it. The Information to Obtain (ITO) in support of the warrant relied heavily on two confidential informants. The Garofoli hearing included two prior applications on which I have already ruled. This is my ruling on the validity of the s. 11(1) CDSA warrant following a step six hearing. I delivered a brief oral judgment on November 30, 2018 with written reasons to follow. These are those reasons.

2I have concluded that the search warrant was properly issued and, therefore, that the search of the applicants’ home did not result in a s. 8 Charter violation. The application should be dismissed.

3I will begin with an overview of the case and then turn to my analysis.

II Overview of the Case:

4In 2014, Cst. Harloff, a member of the Peel Regional Police Street Crime Unit, received information from one of her informants, “CI 2”, that a male was dealing cocaine at the kilogram level and stored his cocaine in differing qualities in his house located in the Winston Churchill Boulevard area of Mississauga. Cst. Harloff had known this informant longer than a year and he or she had proven reliable in the past.

5After receiving this information, Cst. Harloff consulted the Peel Regional Police Intelligence Bureau to determine if they were aware of a male with a similar name and description. Based on the information provided by Cst. Harloff, they were able to identify Antonio Mediati as a possible match through another informant, “CI 1”. CI 1 previously advised Cst. Ratych and Cst. Chase that Mr. Mediati was trafficking cocaine. The officers had confirmed some of the information CI 2 provided and did not have any concerns about his or her reliability.

6As a result of that consultation, CI 2 was shown Mr. Mediati’s picture and it was confirmed that this was the same individual that CI 1 had been informing on. At this point an investigation was commenced. This included three days of surveillance: December 12, 2014, December 14, 2014 and January 3, 2015. It was the officers’ opinion that during the surveillance they made two observations consistent with drug dealing.

7Police occurrences revealed that Mr. Mediati had been residing at 3553 Bertrand Road with his spouse and co-accused, Ms. Dineff. The address is consistent with the area provided by CI 2.

8A criminal record check revealed that Mr. Mediati has a dated record for possession of cocaine for the purpose of trafficking.

9Police obtained a search warrant and executed the warrant on January 3, 2015. They located a locked steel door in the basement which led to a cold room where police located seven and a half kilograms of cocaine and quantities of other narcotics.

10The ITO was heavily redacted to protect the confidential informants (CIs). In an earlier ruling I excised a portion of the ITO which referenced the arrest and seizure of cocaine from a third party.¹ The Crown acknowledged that the remaining redacted version of the ITO was insufficient to meet the criteria set out in R. v. Debot² and requested a step six Garofoli hearing to defend the allegation of a s. 8 Charter violation.

III Applicants’ Position:

11The applicants submit that the ITO did not disclose the requisite reasonable grounds to justify the issuance of the search warrant and was insufficient to meet the criteria set out in Debot. In addition, they argue that the affiant misled the issuing justice with respect to his grounds.

IV Sufficiency of the Judicial Summaries:

12I am satisfied that the redacted ITO, the judicial summary, the disclosure, the cross-examination of the affiant and the Crown's response to further questions by the defence gave the applicants a good foundation upon which to make argument with respect to the sufficiency of the ITO.³ However, I will consider only those portions of the unredacted ITO that have been sufficiently summarized so as to give the defence some idea of the nature of the redacted portions. I have also put little weight on certain items where the source of the information is unknown. The court should consider the unredacted ITO "only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”⁴

13There are number of paragraphs in the judicial summary that describe the information provided in the very broadest of terms; for example: “Specific details about Mediati’s drug dealing practices”, or “Specific details about Mediati’s drug dealing practice, including price”. These paragraphs tell the defence only about the general nature of the redacted information. While they are entitled to know the nature of the details in an ITO, they are not entitled to know the details themselves. Informer privilege prohibits disclosure of any information which might tend to identify an informer, including any information that could implicitly reveal the informer’s identity.⁵

14Despite being unaware of many of the details that have been redacted in the ITO, counsel have raised numerous shortcomings in the ITO and have effectively argued in the alternative during their submissions.

V The Standard of Review of a Search Warrant:

15Prior authorization to search one’s home must be sought absent exigent circumstances and that prior authorization must be able to withstand Charter scrutiny.⁶

16In this case the telewarrant was issued under s. 11 of the CDSA and s. 487.1 of the Criminal Code. Section 11(1) of the CDSA essentially codifies the constitutional requirement for the issuance of a warrant.⁷

17The test for review of a search warrant was laid out by Justice Fish in R. v. Morelli:⁸

In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

18In order to establish reasonable grounds for a search, the appropriate standard is one of “reasonable probability”. It does not require proof on the “balance of probabilities”, much less “proof beyond a reasonable doubt” or a “prima facie case”.⁹

19As Rosenberg J.A. held in R. v. Jacobson¹⁰: “If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.”

20A search warrant authorization is presumptively valid.¹¹ The applicant accused bear the burden of establishing on a balance of probabilities that the search in this case violated their Charter rights and that any evidence seized as a result should be excluded pursuant to s. 24(2).

21In deciding whether or not there are reasonable and probable grounds for issuing a search warrant, the reviewing court must be satisfied that it was reasonable for the issuing justice to believe that the evidence will be on the premises at the time of the search not that there is merely suspicion that evidence may still exist.¹²

22The central issue I must decide is whether the issuing justice had sufficient evidence before him or her as a basis to issue the warrant. I am not entitled to conduct a de novo review of the evidentiary basis for the warrant.¹³ The question is not whether the reviewing court would itself have issued the warrant, rather, I must assess whether the record that was before the issuing justice, as amplified on review, with erroneous information excised, could have supported the issuance of the warrant.

23The warrant should only be set aside where the court is satisfied that there was no basis upon which the warrant could have been issued: Garofoli.¹⁴

24Watt J.A. in Sadikov, described the common sense approach to be taken on review of a warrant:

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 (S.C.C.), at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196 (N.S. C.A.), at para. 13; and Wilson, at para. 52.¹⁵

25In addition the reviewing judge must look at non-disclosure of any material fact with respect to the affidavit as a whole, or with the remaining parts of the ITO. I must consider if there is any evidence remaining, after disregarding the allegations found to be false or in this case excised because of a Charter breach, upon which the justice could be satisfied that a search warrant should issue.¹⁶

VI Misleading and False Information:

26The defence has argued that the police made the following false and misleading statements in the ITO. The deficiencies of the ITO in this case must be addressed in some detail before determining whether it could support the issuance of the warrant.

1. Criminal conviction vs. criminal convictions

27The defence took issue with the affiant’s reference to the defendant having “criminal convictions related to drug trafficking offences”.¹⁷ However, earlier in the ITO¹⁸ Cst. Sauve wrote that the defendant had one criminal conviction for possession for the purpose of trafficking. Later in the ITO,¹⁹ the affiant included two occurrences from 2010 and 2002 where Mr. Mediati was stopped at a motel with a quantity of cocaine, and other drugs. The affiant failed to mention that these occurrences did not result in convictions. While it would have been preferable for the affiant to lay this out clearly, a justice would understand the difference between a conviction and an occurrence. The reference to convictions as opposed to conviction is misleading and I would excise this from the warrant. Cst. Sauve should have added below the occurrences that the defendant was never convicted of these offences. I do not believe this was an attempt to mislead the justice but more an example of careless drafting.

2. Inconsistencies with reported details from surveillance

28Crown and defence counsel agreed that the evidence of Cst. Sauve, Cst. Harloff and Cst. Perreault from the Altomare trial²⁰ could be used on this Garofoli hearing. Mr. Altomare was charged with possession of cocaine as a result of police surveillance at Mr. Mediati’s house. In an earlier ruling I excised the paragraph which referred to the arrest of Mr. Altomare and the seizure of cocaine from his car.²¹ However, I did not excise the observations that police had made prior to his arrest.

29Cst. Sauve wrote in the ITO that police could see “multiple heads moving back and forth at the top of the driveway and could hear very loud talking” on the January 3, 2015 surveillance.²² At Mr. Altomare’s trial, Cst. Sauve advised that he was not present for the surveillance but was kept apprised of the officers’ observations over the radio and was acting as the central note-taker.

30In Cst. Sauve’s notes he recorded that he was advised that two heads could be seen at the top of the driveway when the garage door went from being a quarter of the way open to completely open. Cst. Sauve, during his cross-examination at the Altomare trial, advised counsel that the best person to ask about the observations would be Cst. Perreault who had made direct observations of Mr. Altomare.

31Cst. Perreault testified that he did not have a clear view of the front door of Mr. Mediati’s house and he could not see clearly what Mr. Altomare was doing at the top of the driveway; but he did hear someone say “bye” after which Mr. Altomare drove away. He did not see other people on the driveway.

32I am not sure how Cst. Sauve incorrectly recorded the observation from Cst. Perreault of seeing only Mr. Altomare with seeing “multiple heads”. It is a misleading statement, at the very least it is a careless error. I am not certain if this was intentional on Cst. Sauve’s part. However, I will excise from the ITO the reference to the officer observing multiple heads near Mr. Mediati’s garage.

3. Omitting amount of cocaine seized from Mr. Altomare

33In referring to the arrest of Mr. Altomare, Cst. Sauve wrote that he was found to be in possession of a “quantity of cocaine.²³ Next to this paragraph, a handwritten note on the ITO reads “?how much?” Defence argued that the police deliberately left out the amount which was approximately three grams as this would not support the tip that the defendant was dealing at the kilogram level. The detail with respect to the amount seized is important. It would appear, based on the handwritten note, that the issuing justice also wanted to know the amount of cocaine seized. I can’t say that this was strategically omitted or whether there was a lack of attention to detail when drafting the ITO. I have in any event excised the entire reference to Mr. Altomare’s arrest and the seizure of cocaine from his vehicle in an earlier ruling.

4. Informants are “Separate and Independent”

34In the ITO, Cst. Sauve wrote “Police have received information from two separate and independent, proven reliable confidential sources”.²⁴ When Cst. Sauve was asked if he knew whether the informants were truly independent he stated that he did not know for certain but that the handlers would have to be asked this question. However, based on the fact that the informants came from two different handlers from two separate police units, it is a fair inference to make that they were independent. It appears that it was fortuitous that the officers were able to connect the information they received from their respective handlers. I do not find this to be an incorrect or misleading statement given the information the issuing justice had about the CIs.

5. Mr. Mediati uses a cell phone for his trafficking

35The affiant wrote in two paragraphs²⁵ that the CI indicated that Mr. Mediati actively utilizes a cellular phone to broker narcotics transactions from his residence. This was in fact not referred to in the summary of information relayed by the informants in the ITO. This is misleading and unnecessarily so as Cst. Sauve could have simply wrote that most people today, including drug traffickers, communicate by cell phone and therefore he would have reason to believe that evidence of Mr. Mediati’s drug trafficking may be found on his cellular phone. I will excise the references to the cell phones from the ITO.

6. Both informants provided information that the target was selling from his home

36The defence argues that Cst. Sauve misled the justice by implying that both CIs provided information that Mr. Mediati was selling cocaine from his home. The ITO reads that the CIs provided information that “a male party that is involved in trafficking cocaine from his residence in Mississauga”.²⁶ Both CIs advised that Mr. Mediati trafficked in cocaine, one specifically mentioned that he trafficked out of his house and at a gambling house and the other CI provided details about Mr. Mediati’s drug dealing practices and that the defendant sold cocaine at the gambling establishment. The phrase ‘involved in trafficking’ cocaine from his residence would cover both scenarios given the detail provided by CI 1. In addition, the affiant clearly set out what each CI said with respect to this topic in the appendices. The justice who issued the warrant could not have been misled by this statement.

7. Failure to mention that documents belonging to Mr. Mediati were found in Mr. Altomare’s car

37The affiant failed to mention that documents belonging to Mr. Mediati were found in Mr. Altomare’s car once he was arrested and searched. It is the defence’s position that such a detail leads away from a conclusion that Mr. Altomare was in fact a customer purchasing cocaine.

38I would disagree. Mr. Altomare could have been both a friend and a customer of Mr. Mediati’s. While this detail could have been added in the ITO, police are not required to include every minute detail of an investigation.²⁷

Analysis re Misleading and False Information

39The legal obligation on anyone seeking an ex parte authorization is to make “full and frank disclosure of material facts". The affidavit should also be clear and concise. Boiler-plate language should be avoided as it can result in misleading its readers.²⁸

40A judge has a residual discretion to set aside a warrant despite a proper basis being established for its issuance if it can be said that police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deception, or fraudulent misrepresentation. However, the standard to be met to invoke the discretion is high: R. v. Paryniuk.²⁹

41The courts have recognized that latitude is to be given to police officers in drafting authorizations. They are not expected to draft ITOs with the same precision that counsel might be held to when drafting legal documents. ITOs are often done without the assis­tance of legal advice and under time constraints.³⁰ In R. v. Nguyen, Justice Blair stated:

…However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. …³¹

42In R. v. Nguyen, despite the trial judge having found the search warrant contained five misleading statements and eleven relevant omissions, Blair J.A. found that the warrant still could have issued.³²

43Even if it is established that information contained within an ITO is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. In R. v. Lising and Pires,³³ Charron J. held the existence of “material errors or omissions” in the ITO “is not dispositive of the review of the validity of the search warrant”.³⁴

44Errors or omissions are tested against the affiant’s reasonable belief at the time the ITO was composed, not the truth of the facts stated.³⁵

45Amplification can correct erroneous information when they were made in good faith.³⁶

46Of all the errors and misstatements, the error about police seeing “multiple heads” while surveilling Mr. Mediati’s house is most troubling, particularly when the officer who made the direct observations only saw Mr. Altomare and heard him say “bye”. However, while I find that there were careless and misleading statements in the ITO, I am not satisfied that they rise to the level which would permit me to engage the residual discretion to set aside the search warrant on this basis alone.

47I turn now to determine if the statutory and constitutional preconditions for the issuance of the warrant have been met after the erroneous information has been excised.

VII Compliance with the Debot Criteria:

48The reasonable grounds to believe that the defendant was trafficking and had drugs in his residence, for the most part, comes from two confidential informants. As such an assessment of the totality of the circumstances and the Debot factors must be considered. As Justice Wilson wrote:

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? ³⁷

49Weaknesses in one area may, to some extent, be compensated by strengths in the other two.³⁸

50The court must look to a variety of factors in assessing an informer’s tip including the degree of detail of the ‘tip’, the informer's source of knowledge and the indicia of the informer's reliability such as a past performance or confirmation from other investigative sources.³⁹

51Wilson J. in Debot emphasized that the standard of reasonableness is to be evaluated by a consideration of the “totality of the circumstances”.⁴⁰

52In R. v. Greffe,⁴¹ Lamer J. referred with approval to the following passage from Martin J.A.'s judgment in R. v. Debot⁴² regarding the assessment of unsourced information from a confidential informant:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search. Highly relevant ... are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

(Emphasis added)

53The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. The reliability of a CI’s information is diminished by an absence of any sense as to how the tipster acquired his information.⁴³

A. Was the Information Compelling?

54In this case much of the information supplied by CI 2 did not take the form of bald conclusory statements or mere rumour or gossip. Significant detail was provided. The source of important pieces of the information with respect to the defendant’s drug dealing practices was provided. While CI 1 was not as detailed, he or she did provide compelling information with respect to one area. In addition, the tip the informants provided did corroborate one another to some extent. However, I have been careful to recognize that in some areas the information they corroborated was unsourced and I have not given those details much weight. For example, both CIs provided information about Mr. Mediati selling cocaine at a gambling house in Woodbridge but neither provided the source of this information.

55Both informants provided details of associates of Mr. Mediati and information provided about some of the associates was confirmed. They did not refer to the same associates. However, other than two associates, I was not given the source of the information. In addition, this information was not corroborated to confirm that the person(s) were in fact associates of Mr. Mediati.

B. Was the Source Credible?

56Detail alone does not verify credibility, false information can be elaborate. A reviewing court must determine the reliability of the tip.⁴⁴

57A proven track record of providing information enhances an informer’s credibility.⁴⁵ The judicial summary stated that CI 2 has provided information in the past that has led to numerous charges and search warrants and that CI 2 has been proven reliable in court. No specific examples were given in the ITO. This statement is but one factor I have considered in assessing CI 2’s credibility.

58The CIs were not anonymous tipsters or first time informants. The justice did not have the particulars of their history to confirm that they have been reliable sources. Had the ITO set out specific examples of CI 2’s past performances I would have had further confidence in this informer’s credibility. During argument counsel asked for disclosure of the CIs’ prior involvement as informers but Ms. Rivers rightly objected to this information being disclosed on the basis of informer privilege. I had suggested the possibility of having the court review the CIs’ files, however, Ms. Shikhman did not wish to pursue this avenue.

59The judicial summary stated that CI 1 had, in the past, provided information to police that was confirmed but police did not pursue an actionable investigation with respect to this information. Confirmed intelligence-based information which only indirectly relates to further investigative measures can form a basis for finding an informant has been proven reliable.⁴⁶ However, given the lack of detail provided with respect to CI 1’s prior assistance, it is difficult to assess his past reliability.

60Each informer was given consideration for providing the information. The consideration was contingent on the CIs providing reliable information. Some courts have found that this type of arrangement can bolster an informer’s credibility as it is in their best interest to provide reliable information.⁴⁷ Other courts have found that it does not bode well for a CI’s credibility.⁴⁸ I am of the view that barring any other information, having the compensation contingent on providing reliable information would provide an incentive for informants to provide more accurate information.

61Affiants are required to include the criminal record of a CI in the ITO.⁴⁹ The criminal antecedents for both CIs were disclosed in the ITO. I have considered their criminal history in assessing their credibility.

62The informants in this case were not warned of facing criminal prosecution for providing false or misleading information. The warning would have weighed in favour of the credibility of their tip.⁵⁰

C. Was the Information Corroborated?

63Having a CI with a proven track record does not obviate the need for police to corroborate the tip they receive.⁵¹

64The defence argued that there was very little effort made by the police to corroborate the tip. In addition, the efforts they did make did not result in confirming the tip from the informants. I agree that the efforts to corroborate were greatly lacking.

65The Crown conceded that police could have done more to corroborate the information provided by the CIs. However, Ms. Rivers submits that the surveillance did corroborate that the trafficking was taking place at the address in question. The law provides that weakness in one area of the Debot factors can be compensated by strengths in the other two. The Crown argues that the two CIs are independent and corroborate each other.

66It will be rare for police to be able to confirm the tip to the extent of having observed the commission of an offence and “that level of confirmation is not required”.⁵² However, confirmation of generic, innocuous, innocent, or easily or commonly known details cannot fulfill the corroboration requirement.⁵³There should be confirmation of something material within the communicated information as opposed to routine or commonly available facts.

67Reliability of an informant may be established by past performance as an informant.⁵⁴ There is a clear distinction made between the amount of corroboration required of a tip coming from an untried informant versus a tip obtained from an informant who has been proven reliable from a number of police investigations. Greater corroboration is required of the former.⁵⁵

68The credibility of the source is based on what is known of the tipster. Wilson J. in Debot described when greater corroboration is required of a tip:

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.⁵⁶

69Although the police did not take action with respect to the information provided by CI 1, he or she provided reliable intelligence-based information to the police for six months prior to the issuance of the warrant.⁵⁷ CI 2 has provided information in the past “that has led to numerous charges and search warrants.” Further the information provided “has been proven reliable in court”.⁵⁸

70One significant step the police took to corroborate CI 2’s tip was to reach out to another bureau to see if they had any information to confirm what their informant had provided. The Intelligence Bureau in fact did have a match, CI 1 who had provided similar information about Mr. Mediati.

71Two or more informants can provide mutual corroboration in appropriate cases.⁵⁹ In R. v. Gianforte⁶⁰ a factor supporting the upholding of the warrant was that "all four main sources corroborated each other." In R. v. Jorge⁶¹ the evidence of one confidential informant was found to "contribute to the strength of other informant's evidence." In the cases above one or more of the informants was a person of demonstrated reliability.

72Mutual corroboration should not be found where one informant has value and the other informant information has none.⁶² In Floyd the court found that the three informants did not corroborate one another in large part because they were all untried informants.⁶³ When deciding how useful similar tips are in providing mutual corroboration it is important to consider their source. One of the key factors required for meaningful confirmation is that the informants are truly independent in that their information comes from different sources.

73The applicants argue that while there are similarities between the tips provided by both informants, there is no indication that any of the information provided by CI 1 was truly independent. Much of the information CI 1 provided is unsourced and the defence argued that as such it is nothing but a mere rumour and therefore provides little or no corroboration for the information provided by CI 2.

74Some of the information provided by CI 1 is sourced, however, the nature of this information was not disclosed in the judicial summary because of informer privilege. A specific detail was provided to police which makes a certain piece of the information compelling. However, given the nature of this information was not disclosed to the applicants, I will not put significant weight on it.

75A lot of the information CI 1 provided was biographical. Police were able to confirm details about one of Mr. Mediati’s associates and drug related details concerning this person. However, they did not confirm that this person was in fact an associate of Mr. Mediati’s.

76The commonalities between the two informers were as follows:

i) Both informants spoke about Mr. Mediati selling his cocaine at a gambling house in Woodbridge. However, more information was provided by CI 2 about this establishment which included that it was frequented mainly by Asian clientele. The fact that they have provided different but consistent details about the gambling house suggest their information came from a different source. The same can be true about other details provided by the CIs.

The tip regarding the gambling house does not appear to come from the CIs’ own observations given neither provided an address.

ii) That Mr. Mediati sells certain quantities of cocaine.

iii) That Mr. Mediati is a known associate of traditional organized crime.⁶⁴

77The defence used a passage from a transcript of a previous court date where the court addressed counsel during submissions and concluded incorrectly that I said there were no commonalities between CI 1 and CI 2.⁶⁵ In that exchange, I was referring to the fact that when Cst. Harloff met Cst. Chase and Cst. Ratych it was only for the purpose of finding out whether the Intelligence Bureau was aware of a suspected trafficker with a similar name and description to their target. From the description provided by CI 2, Cst. Chase and Cst. Ratych provided a picture of Mr. Mediati which was identified as the target in question. Following this discussion the Crown provided an addendum to the judicial summaries which summarized the above meeting and stated that the Intelligence Bureau confirmed that they knew Mr. Mediati to be a known associate of traditional organized crime.

78The court does not give evidence. In a Garofoli hearing, judges try to ensure that they do not disclose information from the unedited ITO that has not been vetted by the Crown. As a result, judges often use guarded language when discussing the unedited ITO. For this reason, it is my view that the practice of using a judge’s words during exchanges as a form of disclosure should be avoided.⁶⁶

Other Areas of Corroboration

79Corroboration of criminal activity is not required in every case. The type of corroboration required depends on the specific shortcomings of the tip that the police are attempting to confirm.

80Corroboration of specific claims of the informant can be sufficient in areas other than specific criminal activity of the target.⁶⁷

81A target’s criminal record can be corroborative of the core assertion if it is similar to the alleged criminality reported by the informants.⁶⁸ Mr. Mediati had a dated prior conviction for possession for the purpose of trafficking and two related occurrences for being found in possession of cocaine at a hotel. Neither resulted in a criminal conviction. While the justice could have taken the prior history into account this would not carry significant weight. It is to be considered to a lesser extent along with all of the other information provided.

82Police confirmed the following details through database checks with respect to Mr. Mediati:

• Mr. Mediati’s age and physical attributes.

• A prior conviction from April 29, 2004 for possession of cocaine for the purpose of trafficking; and two prior related occurrences from 2010 and 2002.

• Cst. Sauve confirmed that Mr. Mediati lived in the same area that CI 2 advised he lived by looking at prior police occurrences. These occurrences also revealed that Ms. Dineff was Mr. Mediati’s spouse. Police did checks on a vehicle parked outside the defendant’s residence and confirmed that it was registered to Ms. Dineff with the 3553 Bertrand Road address. A number of computer checks revealed that the Bertrand Road address was the only address currently listed for Mr. Mediati.⁶⁹

• Cst. Sauve searched some of the names the CIs provided that were associated with the defendant and confirmed that some of the information about these associates was drug related.

Surveillance

83Defence argued that the police could have done more surveillance to confirm that the applicant was involved in active drug dealing. It must be remembered that Mr. Mediati was not alleged to be involved in hand-to-hand transactions for small amounts of cocaine. He was alleged to be dealing in larger quantities from a house in the suburbs. It is unlikely that police would be able to witness this type of activity as easily as they would street level trafficking. However, both informants gave information that Mr. Mediati would traffick his cocaine at a gambling house in Woodbridge. One would have expected the police to make efforts to observe Mr. Mediati throughout the day and evening to determine if he was attending such an establishment. The police in fact never witnessed Mr. Mediati enter or leave his home on the three occasions they attended.⁷⁰

84CI 2 advised that the gambling place was said to be frequented by Asian clientele. Police could have made some attempt to confirm if the defendant was attending an address in Woodbridge where Asian persons were also attending.

85The police acted prematurely with the arrest of Mr. Altomare and had put themselves in a difficult position. It would appear that a search warrant had to be obtained immediately to prevent the possibility of Mr. Altomare warning Mr. Mediati about police involvement. I note in the ITO the affiant requested authorization to enter the residence during nighttime hours and referred to his belief that if police attempted to stop further customers, there would be a risk of Mr. Mediati becoming aware of police activity and that the destruction of evidence could become a factor.⁷¹

86The following is a brief summary of the three times surveillance was conducted at Mr. Mediati’s home.

87On December 12, 2014 police watched the address in question for almost one hour. Other than observing Ms. Dineff’s vehicle, nothing was noted.

88On December 15, 2014 they conducted surveillance for close to three hours. After approximately 10 minutes they observed a vehicle attend the defendant’s address and park in the driveway. The vehicle was registered to a J.R. Mr. R. has a criminal record with offences related to violence, weapons and drugs. The drug related convictions are quite dated, from 1989 and 1996.

89The male who exited the vehicle, had a similar description to the information that police had about J.R. They describe him as being in his late 30s. However, Mr. R.’s date of birth would put him close to 49 years old. They observed the male walk back and forth from the house to his vehicle approximately three times. On one occasion he walked back to his vehicle and entered the rear seat. He was back out quickly, locked his car and entered the residence. A minute later he emerged from the residence and walked towards his vehicle only to turn around and go to the front porch where he lit a cigarette. Eight minutes later he entered the residence. After two minutes he exited the residence, walked to his vehicle and left.

90Police did not return to conduct any further surveillance for approximately 19 days. It would have been prudent for the police to do more surveillance at the house and to watch the home on consecutive days. The CIs provided names of Mr. Mediati’s associates. They did not provide the same names. Checking vehicles that attended at the address over a lengthier period of time may have provided confirmation that the names provided by the CIs were known to Mr. Mediati.

91On January 3, 2015, Mr. Altomare attended Mr. Mediati’s house for a brief period of time. He was observed to go close to the garage but not into the house. As discussed earlier, the information provided in the ITO about Mr. Altomare was inconsistent with evidence of the officer who made the observations. However, what was consistent between the two separate dates of surveillance was that the two men observed at Mr. Mediati’s house attended for a brief period of time and left.

92Defence argues that what the police observed could not be said to be evidence of drug trafficking. However, this was the opinion the police provided in the ITO. While the observations may not have given them the grounds to arrest the parties who attended, it could provide them with grounds to believe that trafficking was taking place. This was an inference that was available to them and also to the reviewing justice.

93Clearly, there was a lack of significant surveillance. The police efforts to investigate further to corroborate information supplied by the CIs was far from exhaustive. When I am assessing the level of corroboration in this case I must weigh it along with the other Debot factors as was described by Doherty J.A. in R. v. Lewis:

……I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.⁷²

94In Crevier, Rouleau J.A. upheld a warrant that was not actively corroborated on the basis of the detail of the tip and confirmed that when assessing the reliability of a tip “weaknesses in one of the Debot factors may to some extent, be compensated for by strengths in the other two factors.”⁷³

VIII Currency of Information Relied upon to Obtain an ITO

95Depending on the length of the delay and the nature of the object(s) to be searched for, stale information can diminish an officer’s reasonable and probable grounds.⁷⁴

96In R. v. Colby, [1999] S.J. No. 915, a drug investigation had taken place over several years. Police received information during this time that the defendant was involved in an ongoing marihuana grow operation yet they did not act on it for close to two months. The Court found that there was no basis on which the Justice of the Peace could determine that a warrant should issue.

97With respect to the information provided by CI 1, there was nothing provided which established that Mr. Mediati was trafficking at the time the tip was provided. Rather it was general information that he trafficked. CI 1’s tip would not be sufficient standing alone. CI 2, however, did provide compelling information that was current. In addition, the police observations confirmed for them that Mr. Mediati was still trafficking.

IX Affiant a “Straw Man”?

98When I assess the credibility of the tip and also the credibility of the warrant the defence ask me to consider that Cst. Sauve was merely a “straw man”: that he had little understanding of the investigation and no contact with the informants. They contend he swore the affidavit so he could shield the handler, Cst. Harloff, from cross-examination about the reliability and credibility of the informants.

99While there is no legal requirement that affidavits in support of a warrant come directly from officers involved with confidential informers, it is preferable, where possible, that they come directly from those with firsthand knowledge of the facts set out therein.⁷⁵

100The affiant should be an officer playing an active part in the investigation who takes the responsibility for swearing an oath concerning the relevant evidence gathered. I was prepared to entertain an application to allow defence to cross-examine the handler, Cst. Harloff, however, counsel withdrew their application.

101Cst. Sauve, the affiant, was involved in the investigation. He was part of a team investigating the defendant. While he did not have contact with the informants, he was a central note-taker during the surveillance and conducted a number of police checks to confirm various details about Mr. Mediati. In addition, two other officers handled CI 1 while Cst. Harloff handled CI 2.

102Counsel referred to passages from the Altomare trial where Cst. Sauve was asked questions about the ITO for Mr. Mediati. In those exchanges Cst. Sauve replied that counsel should speak to the handler to confirm whether an informant said that Mr. Mediati was dealing out of his house. However, at that time he was asked these questions, he did not have the unedited ITO in front of him. Further he was aware of the requirement to protect informer privilege.

X CONCLUSION

103After a careful review of the unedited ITO I have excised erroneous statements and considered the omissions. Looking at the totality of the circumstances presented at this hearing, it is my view there were reasonable grounds for the affiant to believe that Mr. Mediati committed the offence of trafficking in cocaine and that evidence of that offence would be found at the address in question.⁷⁶ I have made the determination that the warrant should have issued based on my assessment of all the facts on the same “practical, non-technical, common sense basis that was applied by the authorizing justice.”⁷⁷

104I have assessed whether the tip meets the Debot criteria after the erroneous and Charter offending information was excised.⁷⁸ While the corroboration was minimal, the tip provided by CI 2 was compelling. The underlying circumstances for CI 2’s knowledge that drugs would be in Mr. Mediati’s house was laid out for the justice. For the most part, the source of CI 2’s information was provided. Given the detail provided, I find that the relevant part of the tip was not based on mere rumour or gossip. This CI has proven highly reliable in the past.

105The tip provided by CI 1 was not as compelling. Further the tip was less credible given the source of his or her knowledge was rarely set out. However, he or she provided reliable intelligence based information in the past and the two CIs, in some respects, corroborated one another.

106Corroboration with respect to the core assertions was minimal. However, the weakness in the corroboration of the tip is compensated by the strength in the other Debot factors.

107I am satisfied that the ITO, as reduced and amplified, provided sufficient information to permit the Justice of the Peace to conclude that there were reasonable grounds to justify the issuance of the warrant.⁷⁹

108The ITO, contextualized within the totality of the circumstances, enabled the justice to properly conclude that there was a credibly based probability that Mr. Mediati possessed a quantity of cocaine at his residence. There was, accordingly, no breach of s. 8 of the Charter.

XI Section 24(2) of the Charter

109In the event that I have erred in my s. 8 conclusion, I will briefly address whether the evidence seized from the applicants’ home should be excluded pursuant to s. 24(2) of the Charter.

110The applicants bear the burden of establishing that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The analysis under s. 24(2) requires me to assess the long-term effect of admitting the evidence on society's confidence in the justice system having regard to the following factors: the seriousness of the breach; the impact of the breach on the Charter-protected interests of the defendants; and the societal interest in a trial on the merits.⁸⁰

A. Seriousness of the Charter-infringing State Conduct

111The applicants submitted that the police deliberately set out to mislead the issuing justice and sought the search warrant without significant investigation. A number of errors were exposed in the drafting of the ITO. In addition, at the outset of the Garofoli hearing, the defence was successful in having reference to the arrest of a third party excised from the ITO. As indicated above, the other errors for the most part were a result of carelessness rather than an intent to mislead the justice. While the surveillance was far from substantial, the police investigation did not display a marked pattern of carelessness or negligence.

112The search was conducted pursuant to a presumptively valid warrant, obtained and executed in good faith.As stated earlier, the arrest of the third party forced the police to act swiftly and did not allow for further surveillance. I would therefore place the seriousness of the Charter-infringing state conduct towards the more minor end of the scale. Accordingly, this branch of the test favours admission of the evidence.

B. Impact of the Breach on the Charter-Protected Interests of the Accused

113The section 8 Charter right to be secure against unreasonable searches protects a person's expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one's home. The impact of the breach would therefore militate strongly in favour of exclusion of the evidence.

C. Society's Interest in Adjudication on the Merits

114The evidence of the cocaine and other drugs found in the applicants’ home is relevant and reliable evidence, and is important to the Crown's case. The public interest in having a trial on the merits favours the admission of the evidence on this basis.

D. Balancing

115The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In all cases, it is the long-term repute of the administration of justice that must be assessed.⁸¹

116The negative impact of the police search of the applicants’ home on their Charter-protected privacy interests is very significant in determining the effect of admitting the evidence on the repute of the administration of justice. Nevertheless, the police were acting in good faith on the basis of a presumptively valid warrant. The evidence seized was highly reliable and crucial to the prosecution’s case. To exclude the evidence in these circumstances would adversely affect the public's confidence in the administration of justice. Accordingly, in the event that the applicants' s. 8 rights were violated, I would admit the evidence pursuant to s. 24(2) of the Charter.

Footnotes

1. 12018 ONCJ 164.
2. 2[1989] 2 S.C.R. 1140 (S.C.C.).
3. 3R. v. Crevier, 2015 ONCA 619, paras. 77, 81, 90; R. v. Boussoulas, 2014 ONSC 5542, paras. 67-69.
4. 4R. v. Crevier, para. 32.
5. 5Crevier, paras. 49- 50.
6. 6Before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), at para. 43). These distinct and cumulative requirements together form part of the "minimum standard consistent with s. 8 of the Charter for authorizing search and seizure".
7. 7To issue a s. 11(1) CDSA warrant, the justice had to be satisfied that there were reasonable grounds to believe that there was in each place to be searched: i. a controlled substance or precursor in respect of which the CDSA had been contravened; ii. anything in which a controlled substance or precursor was contained or concealed; iii. offence-related property; or iv. anything that would afford evidence of a CDSA offence.
8. 82010 SCC 8, at para. 40.
9. 9R. v. Debot, at para. 54; R. v. Morelli, at para. 127; R. v. Sadikov, 2014 ONCA 72, para. 81.
10. 10[2006] O.J. No. 1527, at para. 22.
11. 11R. v. Sadikov, at para. 83; R. v. Collins, [1989] O.J. No. 488 (Ont. C.A.); Crevier, para. 66; R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549 (S.C.C.).
12. 12R. v. Campbell, [2005] O.J. No. 2369, at paras. 41 to 46. Sadikov, at para. 81, R. v. Stevens, 2015 ONSC 436, at para. 54.
13. 13R. v. Victoria, 2018 ONCA 69, at para. 96.
14. 14R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 68.
15. 15Sadikov, at para. 82.
16. 16R. v. Araujo, 2000 SCC 65 at paras. 55-57; R. v. Garofoli, 1990 CarswellOnt 119; [1990] S.C.J. No. 115 at para. 68.
17. 17ITO, page 12, para.17.
18. 18ITO, page 8, para. 5 (b).
19. 19ITO, page 8, paras. 7 (a) and (b).
20. 20R. v. Altomare, unreported, Brampton, January 28, 2016; Altomare, January 27, 2016 transcripts.
21. 21R. v. Mediati, 2018 ONCJ 164.
22. 22ITO, page 11, para. 14 (h).
23. 23ITO, page 13, para. 21.
24. 24ITO, page 12, para. 15.
25. 25ITO, page 12, para. 15 and page 15, para. 31 (a).
26. 26ITO, page 12, para. 15.
27. 27Araujo, at para. 46.
28. 28Araujo, at para. 46; Morelli, at para. 44.
29. 292017 ONCA 87, paras. 69-75.
30. 30R. v. Sanchez, [1994] O.J. No. 2260 at para. 20.
31. 312011 ONCA 465 at para. 57.
32. 32At para. 58.
33. 332005 SCC 66, at para. 30.
34. 34R. v. Sadikov, 2014 ONCA 72, at para. 93.
35. 35World Bank Group v. Wallace, 2016 SCC 15, 2016 SCJ No. 15, at para. 122.
36. 36R. v. Araujo, para. 58.
37. 37Debot, para. 60.
38. 38R. v. Debot, at para. 53; R. v. Plant (1993), 24 C.R. (4th) 47 (S.C.C.), para. 35.
39. 39R. v. Garofoli, [1990] 2 S.C.R. 1421, at paras. 80 to 86.
40. 40At para. 53.
41. 41[1990] 1 S.C.R. 755 (S.C.C.) at para. 48.
42. 42(1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at 218-9.
43. 43R. v. Amare, [2014] O.J. No. 5255 at para. 84.
44. 44R. v. Floyd, 2012 ONCJ 417, para. 51.
45. 45R. v. Amare, 2014 ONSC 4119 at para. 91.
46. 46R. v. Amare, 2014 ONSC 4119, para. 91; 2015 ONCA 673, para. 10, appealed on other grounds.
47. 47R. v. Amare, 2015 ONCA 673, para. 10.
48. 48R. v. Elliott, 2017 ONSC 166, para. 145.
49. 49R. v. Rocha, (2012) ONCA 707 at para. 33; R. v. Lindsay, [2015] O.J. No. 971, para. 81.
50. 50Crevier para. 84; and Elliott para. 145; R. v. Noorali, 2010 ONSC 2558, at para. 40 (affd 2012 ONCA 589).
51. 51R. v. White, 2008 O.J. No. 3577, at para. 45.
52. 52R. v. Rocha, 2012 ONCA 707, at para. 22.
53. 53R. v. Green, 2015 ONCA 579 at para. 29; R. v. Caissey, 2008 SCC 65 (S.C.C.), aff'g 2007 ABCA 380 at para. 25; R. v. Zammit, [1993] O.J. No. 881 (Ont. C.A.) at paras. 26-27.
54. 54R. v. Caissey, 2007 ABCA 380, para. 22 aff’d 2008 SCC 65, S.C.C.
55. 55Debot, at para. 66; (R. v. Markiewicz, 2014 ONCA 455, at para. 2; R. v. Soto, 2011 ONCA 828, at paras. 8-9).
56. 56Debot, at para. 63.
57. 57Judicial Summary of Appendix E, para. b.
58. 58Judicial Summary of Appendix D, para. b.
59. 59R. v. Saunders, 2003 NLCA 63, [2003] N.J. No. 309 (N.L. C.A.); affirmed in R. v. Saunders, [2004] S.C.J. No. 66 (S.C.C.); R. v. McElroy, 2009 SKCA 77, [2009] S.J. No. 416 (Sask. C.A.).
60. 60[2003] O.J. No. 5711 (Ont. C.J.).
61. 61[2010] O.J. No. 3847 (Ont. S.C.J.) at para. 33.
62. 62R. v. Floyd, 2012 ONCJ 417, para. 46.
63. 63Floyd, at paras. 76-79; R. v. Moran, 2011 ONSC 3198, at paras. 12-17.
64. 64Set out in the summary for CI 2. With respect to CI 1, this information was given in the addendum to the Judicial Summary, #6.
65. 65See transcript: Feb. 17, 2018 at p. 52.
66. 66Counsel incorrectly took from another exchange with the court that I was disclosing that only one CI spoke about the fact that the defendant was dealing out of his house. However, I was pointing out to counsel in response to their submission that there was no link to the house that CI 2 had clearly indicated there was a link to the house.
67. 67Caissey, para. 22; Floyd, para. 38.
68. 68R. v. Macdonald, 2012 ONCA 244, 2012 O.J. No. 1673, para. 23.
69. 69The applicants in submissions stated that the house in question was owned by the defendant’s sons; that police failed to investigate the legal ownership of the property. While this was true in a legal sense, it was abundantly clear from police checks already referred to that the defendant and Ms. Dineff resided at the address.
70. 70It should be noted on the first date of surveillance police attended for less than an hour. They obtained information about the ownership of a vehicle in the driveway.
71. 71ITO, para. 33, page 17.
72. 72(1998), 38 O.R. (3d) 540, 107 O.A.C. 46 (Ont. C.A.) at para. 22.
73. 73At para. 107.
74. 74R. v. Turcotte,[1987] S.J. No. 734, paras 33-77; (Sask. C.A.) at p. 206; R. v. Campbell, [2005] O.J. No. 2369, para. 45.
75. 75Araujo, para. 48.
76. 76R. v. Nguyen, 2011 ONCA 465, para. 57; also see R. v. Riley, [2009] O.J. No. 738, paras. 124-126.
77. 77Sadikov, para. 82.
78. 78In R. v. Mediati, 2018 ONCJ 164, I excised the arrest and seizure of cocaine from Mr. Altomare.
79. 79Araujo, para. 54.
80. 80R. v. Grant, at paras. 71-84, and 109-111.
81. 81R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para. 36.