Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Dorant Bair
Before: Justice R. Rutherford
Heard on: April 9, 10, 29, 30, 2019 & May 1, 2019
Reasons for Judgment released on: June 20, 2019
Counsel:
- E. Marrocco, for the Crown
- J. Struthers & A. Pinnock, for the defendant Dorant Bair
Judgment
Introduction
1Mr. Bair stands charged with multiple drug and firearms offences. At the outset of the trial counsel on behalf of Mr. Bair brought an application to quash the search warrant.
2Mr. Struthers and Ms. Pinnock further argued that Mr. Bair's s. 8 Charter right to be free from unreasonable search and seizure was violated, therefore, all items seized should be excluded pursuant to 24(2) of the Canadian Charter of Rights and Freedoms.
The Search Warrant and Charter Application
3Mr. Struthers submits there are no reasonable and probable grounds for the issuing justice to have authorized the search warrant. He argues the police did no investigation to corroborate the information provided by the two confidential informants. Mr. Struthers argues that the issuing justice in the circumstances should have been suspect of the credibility and reliability of the information provided. Mr. Struthers lastly argues that because there are no objectively reasonable facts upon which the police could rely, the information provided to the issuing justice was neither compelling nor credible.
4On April 29, 2019 I dismissed the application with reasons to follow. I will now set out my reasons.
The Facts
5On March 12, 2018 a Justice of the Peace granted a warrant to search 2215-325 Bleeker Street in the City of Toronto. The Information to Obtain (ITO) was sworn to by Police Constable Bogal. It incorporated the contents of a previously sworn ITO. That warrant was denied on March 3, 2018 by Justice of the Peace Rotundi.
6The ITO contained information from two confidential sources and was heavily redacted to conceal the identification of both confidential sources.
7The warrant was executed on March 12, 2018.
8Police seized three handguns, a magazine, cocaine, approximately $4000.00 in Canadian currency, digital scales, two cellular phones and identification in Mr. Bair's name. Two of the firearms, the ammunition and a prohibited device were located in a plastic zip lock bag in a hole in one of the walls of the unit. The third firearm, cocaine and money were found in a lockbox in a bedroom. In the same bedroom, in a dresser drawer, the police located a quantity of cocaine.
9Mr. Bair was located in the unit and was arrested without incident.
Process on the Charter and Garofoli Application
10Prior to commencing the application Crown counsel Ms. Marrocco conceded that the ITO in its redacted state did not disclose reasonable and probable grounds to believe that the items listed in the warrant would be found in the unit. She provided a summary of the ITO to the Applicant.
11The Applicant was not satisfied with the summary. Counsel argued the judicial summary did not allow the Applicant to make informed submissions. The Applicant sought leave to cross examine the affiant and sub affiant.
12At the commencement of the trial both parties agreed that the case should proceed to a "Step 6 Garofoli". I was provided with a copy of the unredacted ITO.
13I held an in camera hearing with Ms. Marrocco. Submissions and a discussion took place. I made edits to the judicial summary. A new judicial summary, exhibit 4, was provided to the Applicant.
14Upon review of Exhibit 4 Mr. Struthers submitted that the source was a police agent and not an informant and accordingly did not enjoy the same privileges as those of a confidential informant. He argued the case against Mr. Bair should fail.
15I held another in camera hearing with the Crown. I heard submissions and reviewed an affidavit from the informant's handler. The affidavit is a sealed exhibit on the Charter application. Based on the submissions and information I was given I was satisfied on a balance of probabilities that the informant was not a police agent and that the source continued to enjoy the privileges of a confidential informant.
16Mr. Struthers and Ms. Marrocco then made submissions on the sufficiency of the contents of the judicial summary. Part way through submissions Mr. Struthers conceded the summary was sufficient and submissions were made on the Charter application.
17Ms. Marrocco and Mr. Struthers agreed to the following:
There was no police corroboration by observation of Mr. Bair.
The police did not execute the warrant in accordance with the procedure and terms set out by the issuing justice. The police did not wait for the possibility that Mr. Bair could be located outside of the unit before executing the warrant.
18Mr. Struthers withdrew the application to cross-examine the affiant and the sub affiant.
The Garofoli Hearing—The Law
19The test is well settled. Search warrants are presumptively valid. The defence has the onus of demonstrating on a balance of probabilities that s. 8 of the Charter has been breached due to the invalidity of the warrant.
20On review the question becomes whether there was sufficient credible and reliable evidence before the issuing justice that could enable her/him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of the crime would be found at a specified place and time. It is not the Court's job to substitute its own opinion for that of the issuing justice. What the Court must do is look at the record and determine whether it is satisfied that the issuing justice could have issued the warrant. If satisfied then the test has been met.
21The standard for making this determination is one of credibly based probability. There must be more than an experienced based hunch or mere suspicion. There must be a reasonable probability or a reasonable belief.
22Where, as in this case, the reasonable grounds are based largely on information from confidential sources, I must consider the test set out in R v. Debot, [1989] 2 S.C.R. 1140. Three criteria must be considered. Is the information:
- Compelling;
- Credible;
- Corroborated through independent investigation.
23In determining whether the information is compelling the Court will consider whether the information is first hand, or whether it is rumour or hearsay. Is the information detailed? The more details provided the more compelling the information will be. Is the information specific or is it more common place? If it is common information then it is unlikely to be compelling. Is the information current or does it detail past information with no emphasis on the present? The more current the more compelling.
24To determine whether the information is credible the reviewing justice will look to whether the source is past proven. What is the track record of the source? Has past information proven to be accurate? Does the informer have a criminal record? Are there convictions for crimes of dishonesty? What is motivating the informer to provide the information? Is the information being provided knowing that no benefit will follow unless the information is accurate?
25Lastly the reviewing justice must consider whether the police have conducted an investigation that corroborates any of the information provided by the confidential source. Corroboration of commonplace information or conduct is not as persuasive as more specific or "inside" information. However there may be occasions when innocent details will enhance the overall credibility of the source alleviating the need for other corroboration. What the reviewing court must consider is whether the information is corroborated to a degree that is reasonable in the circumstances.
26Inquiries into the three Debot factors need not be done in isolation. As set out in R v. Iyeke 2016 ONSC 7120 (Sup. Ct. Jus.) and R. v. Greaves-Bissesarsingh [2014] O.J. No. 3892 (Sup. Ct. Jus.) strength in one of the Debot criteria may offset weakness in another. The reviewing justice must therefore consider the totality of the circumstances when determining whether the information provided to the issuing justice was compelling, credible and corroborated.
Analysis
27When I consider the totality of the circumstances I find that the information provided to the issuing justice was sufficient to authorize a search of the premises at 2215-325 Bleeker Street.
28The information from both sources is sufficiently compelling.
29The information provided by Confidential Source 1 was detailed and current. The source had direct dealings with Mr. Bair and was able to identity him by a photograph. The source provided details about prior drug transactions between them. The issuing justice had information about a particular cocaine transaction that occurred between Mr. Bair and the source including when it took place. The source had personal information about Mr. Bair, which included details of associates, vehicle information and a location.
30Confidential Source 2 also provided detailed information about Mr. Bair. This information in combination with the information provided by confidential source 1 would assuage any concern the issuing justice would have regarding the compelling nature of the information.
31I also find the information provided to the issuing justice was credible. Confidential source 1 has been used by the police on prior occasions and is registered with a police service. The source has been proven reliable and has not been found to have provided misleading information in the past. The issuing justice had information surrounding the details of past use. Although source 1 was motivated by money the source was cautioned about providing misleading information and was told that no benefit would occur unless the information was accurate.
32The same caution was given to confidential source 2. I am mindful that this source is not past proven reliable. This could have the effect of undermining the credible nature of the information. In this case however the issuing justice had sufficient details of the source's information which when combined with the information from confidential source 1 meets the standard of reasonably