Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
LD
Before: Justice Patrice F. Band
Reasons re. s. 8 Charter Application – "Step 6 Garofoli"
Counsel:
- Mr. E. Gilman and Ms. A. Webb — counsel for the PPSC
- Mr. C. Zeeh — counsel for the Applicant
Decision
I. Background
1I have already advised the parties of my finding that the warrants in this case met the required standard and complied with s. 8 of the Charter. These are my reasons for that conclusion. They should be read in conjunction with my earlier reasons in this matter, regarding "Step 5 Garofoli" and s. 10(b) of the Charter, both of which contain a recitation of the relevant facts and law. They can be found at [2019] O.J. Nos. 3122 and 5650, respectively.
II. Procedure
2As Garofoli hearings go, this one was straightforward. Initially, the Crown attempted to defend the warrants on the basis of the ITO as redacted. During that process, the Crown provided a number of clarifications to the defence, either by way of direct responses or by "peeling back" some of the redactions. The record was also amplified by way of a modest correction. After hearing argument, I held that the ITO as redacted did not meet the requisite standard.[1]
3The Crown indicated its desire to proceed to Step 6. In camera, the Crown and I engaged in discussions aimed at ensuring that a sufficient judicial summary could be provided to the defence. During that process, defence counsel was invited to make submissions and seek further clarifications. Ultimately, defence counsel conceded that the summary was sufficient to make him aware of the nature of the excised material and to enable him to challenge it in submissions or by evidence. The defence did not seek leave to cross-examine the affiant or call evidence. No errors, omissions or misrepresentation are alleged. So, for all intents and purposes, this application constituted a straightforward facial challenge to the sufficiency of the ITO.
III. Applicable Legal Principles
4In addition to the law I discussed in my previous reasons, I have reminded myself of the guiding principles set out in R. v. Crevier, 2015 ONCA 619 at paras. 62-90. They include:
A search warrant is presumptively valid, and the challenging party bears the onus of demonstrating, on a balance of probabilities, that it should not have issued.
A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.
Where, as here, the warrant depends on confidential informants, the reliability of those informants must be assessed using the "three Cs" discussed in R. v. Debot: the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.
As the reviewing judge, I am to consider the totality of the circumstances and the context in which the hearing took place, including the fact that the accused has been unable to directly challenge the redacted portions of the ITO.
IV. The ITO and the Three Cs
5Armed with the judicial summary, disclosure and a strong command of the law in this area, defence counsel was able to provide me with a good deal of guidance during submissions as to how to assess the ITO. The fact that LD was involved in the illicit drug trade was hardly controversial. His focus was on the currency of the information provided by the CIs and whether the ITO as a whole established the requisite nexus between LD's criminality and the three locations to be searched.
6A few examples suffice to illustrate the strength of defence counsel's submissions. In assessing whether CI1's tips were compelling, counsel urged me to determine whether there is more to the grounds regarding residence #2 than the fact that a search had been fruitful at that location in March 2017, after LD had repeatedly sold cocaine to an undercover officer. Closely tied to that issue is the currency of the information. Also relevant is whether CI1's information was based on first-hand knowledge. Regarding CI1's credibility, defence counsel plotted the potential types of motivation on a spectrum from "concerned citizen" to one with a financial or penal stake. He also suggested reasons why entries for offences of dishonesty on a CI1's criminal record, if any, would raise more concerns than other kinds – particularly if they are recent. Likewise, CI1's history as an informant is also relevant, especially if he or she has provided false information in the past. Regarding corroboration, defence counsel pointed to the limited amount of recent police surveillance.
7The Crown submitted that the information provided by CI1 (as corroborated to some extent by CI2) was credible, compelling and corroborated.
Compelling Nature of CI1's Information
8I must be careful regarding what is disclosed in these reasons owing to the need to protect CI1's identity. CI1's information included the following about LD:
- two residential addresses,
- a description of residence #1, an apartment on the 8th floor, including information on how to access it,
- a car by make, colour and license plate number (a black Mercedes Benz),
- a nickname,
- a description of LD and other information about his identity,
- information about CI1's meetings with or drug purchases from LD, including location, type of drug, quantity and value,
- LD's drug dealing practices, including where he stored drugs, where he sold them and the type and quantity of drug he sold, and
- Details of steps LD has taken to avoid arrest.
9In my view, this information was very compelling. Far from being conclusory or based on rumour or gossip, it was detailed and based on first-hand knowledge. What is more, I am able to state that the information satisfies the currency requirement.
Credibility of CI1
10The unredacted ITO that was before the issuing justice contains information about CI1's involvement with the criminal justice system (including a criminal record or outstanding charges) if any. It discloses whether or not CI1 had been arrested for offences of deceit. It reveals CI1's motivation as an informant, as well as the fact that CI1 was cautioned about providing false information and was not promised anything. CI1 had provided information to police in at least three investigations. Arrests were made on more than one related occasion, and corresponding police file numbers were included. The ITO also discloses that CI1 had not provided false information in the past.
11Having reviewed the unredacted ITO, I can state that while some factors detract from CI1's credibility, they are outweighed by those that support it and point to its reliability.[2]
Corroboration
12Police surveillance corroborated the CIs' information regarding LD's connection to the three locations to be searched. On May 24, 2018, the Mercedes was seen at residence #2. On May 25, police saw LD enter the building where residence #1 is located and going into the elevator, which stopped on the 8th floor. Later, they saw him exit the building and enter the Mercedes.
13Police checks further confirmed LD's connections to residence #2 and the Mercedes. LD was on a bail requiring that he live at residence #2. The Mercedes was registered in LD's name at that address. He had been stopped for a traffic violation in that car twice in May 2018. When stopped by police in a different car in January 2018, LD provided residence #2 as his address. Past police occurrences, including a search warrant, also linked LD to residence #2.
14CI2 corroborated CI1's information connecting LD to residence #1.
V. Conclusion as to Validity of the Warrants
15It is true that the police surveillance in this matter was limited, and does not corroborate the very criminal activity at issue per se. This, of course, is rarely possible and is not required: see R. v. Herta, 2018 ONCA 927 at para. 38. What is more, weaknesses in one area can be remedied by strengths in other areas. In this case, CI1's credibility and the compelling nature of that person's information more than compensate for the limited corroboration provided by the police investigation. Overall, CI1's information was very reliable.
16The police belief that evidence of the listed offences might be found at all three locations was reasonable. It must be remembered that the business of drug dealing generates evidence beyond the illicit substances themselves, including debt lists, scales, significant quantities of cash, packaging materials etc. Also, drug dealers store their product in different locations, including their residences, and they move it from place to place in their motor vehicles. I would repeat what Madam Justice Kelly said in R. v. Balouch, [2016] O.J. No. 2210 at para. 50 (S.C.J.): "the drugs had to be stored somewhere." In this matter, a reasonable inference existed that they might be found at all three locations to be searched.
17For these reasons, viewed from a common sense perspective, the totality of the circumstances supports the conclusion that the preconditions for the issuance of the warrants were met.
Released: December 19, 2019
Justice Patrice F. Band
Footnotes
1One of the principal concerns was the currency of the information, as redacted. In that regard, a number of cases had been submitted to me, including R. v. James, 2019 ONCA 288. Since then, the Supreme Court of Canada reversed that decision "substantially for the [dissenting] reasons of Justice Nordheimer, to the extent that he concluded that there was no breach of s. 8 of the Canadian Charter of Rights and Freedoms": see 2019 SCC 52.
2See R. v. Whyte, 2011 ONCA 24 at para. 21.