R. v. Mills, 2023 ONCJ 163

ONTARIO COURT OF JUSTICE

CITATION: R. v. Mills, 2023 ONCJ 163

DATE: 2023 03 26

Toronto Region – Old City Hall

COURT FILE No.: 21-15002540

BETWEEN:

HIS MAJESTY THE KING

— AND —

TANYA MILLS

Before Justice H. Pringle

Heard on March 23, 2023

Reasons for Judgment released in writing on March 26, 2023

RULING: SECTION 8 GAROFOLI APPLICATION

Eric Gilman and Nic Baldwin.......................................................... counsel for the Crown

Victoria Palermo.................................................... counsel for the applicant Tanya Mills

PRINGLE J.:

OVERVIEW

1The applicant sought exclusion of evidence seized pursuant to a residential search warrant at [address vetted]. This search warrant was supported by an Information to Obtain sworn by D/C Ng. In it, he asserted a belief that controlled substances and offence-related property would be found at that location.

2This ITO relied heavily on confidential informant (CI) information. More specifically, a single CI alleged they¹ had personally bought crack cocaine, inside the target address, from the applicant. The same CI claimed the applicant was known as “Smurf” and could be found, almost every night, selling drugs around Dundas and Sherbourne/Jarvis.

3The search warrant was authorized, on May 4, 2021, by Justice of the Peace De Lurdes Cruz. It was executed in the early morning hours of the next day. Controlled substances, cash, and drug paraphernalia were found inside a bedroom. The Crown seeks to tender these items into evidence against the applicant at trial.

4The applicant alleged a review of the ITO demonstrated a s. 8 Charter breach. She argued that application of the Debot criteria revealed the absence of reasonable and probable grounds. The respondent disagreed.

5I found there was a solid basis upon which this warrant could have issued. The ITO provided sufficient evidence to meet the requisite standard of reasonable and probable grounds. The applicant failed to discharge its onus to dislodge the presumption of validity and show otherwise.

6The s. 8 application must therefore be dismissed. I have declined to proceed through the s. 24(2) analysis.

APPLICATION PROCESS

7Given the reliance on CI information, the ITO initially disclosed was heavily redacted. The Crown conceded the redacted version failed to meet establish reasonable and probable grounds, and initiated the Step Six review process.

8After communication² and drafting, a judicial summary was produced to the defence. It represented my best effort to maintain CI protection while enabling the applicant to make full Garofoli argument. Aspects upon which the Crown and I could not agree were excised from review consideration.

9Defence objections to the summary were placed on the record and, with one exception, dismissed. That exception found its way into an addendum to the judicial summary. Garofoli arguments were then revised and argued.

GUIDING LEGAL PRINCIPLES

10The following legal principles apply to the review analysis:

• This search warrant is presumptively valid. It is the applicant’s onus to demonstrate the warrant could not have issued;
• This is not a trial. It is an admissibility hearing into whether the ITO established reasonable and probable grounds (RPG) to believe an offence had been committed and there was evidence to be found at the place of search;
• The RPG threshold is not onerous, and as per R. v. Jacobson, 2006 CanLII 12292 (ON CA), 2006 209 OAC 162 at para. 22:

does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.

[emphasis added]

• It matters not whether I would or would not have issued a warrant. If there is a basis upon which the issuing justice could have granted the warrant, it must be upheld.

11Upon review, tip-based information must be assessed through a “totality of circumstances” lens. As per para. 53 of R. v. Debot 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, attention must be paid to:

• Whether information predicting the criminal offence was compelling;
• Whether the source was credible, and;
• Whether the information was corroborated by police.

12As elucidated by Code, J., in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 at para. 35:

….the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to any supporting information uncovered by the police investigation.

[emphasis added]

13Again as per para. 53 of Debot, supra,

the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

14Where the source is anonymous, untested, and/or provided little detail, greater corroboration may be required to meet the threshold of reasonableness: Debot at paras. 59 and 63. Put otherwise in R. v. Zettler, 2015 ONCA 613 at para. 7, “Tips from proven reliable informants require less corroboration than tips from anonymous sources or an untried informant”.

APPLICATION OF LAW TO FACTS

15There were ample reasonable grounds underlying the issuance of this search warrant. There was evidence to support a finding that the CI was credible. The CI information was extremely compelling. Finally, multiple salient aspects of the CI’s information were corroborated through police investigation.

Credibility

16The following evidence was available to support a finding of CI credibility:

• The CI was a carded confidential informant, who had been providing reliable information to police for years. This was not a one-off occurrence. This was not an anonymous or untested source.
• The issuing justice was given specific examples of three separate recent occasions, where this CI provided information that led to search warrants being executed and charges being laid.
• While the issuing justice had no information about whether convictions resulted on those occasions, she was entitled to accept what she knew of these outcomes as some indicia of CI reliability;
• The CI was warned that they “will face criminal charges for making false reports to police regarding information on past, present, and future investigations”. This warning was available, to the issuing justice, as evidence upon which she could conclude the CI was providing reliable information;
• The CI was a drug user, embedded in the inner workings of drug culture, and was in a position to provide first-hand information.

17The applicant has pointed to evidence which detracted from a finding of CI credibility. For example, The CI was motivated by some form of self-interest, which can be a tempting reason to give false information.

18This CI has a criminal record, including offence(s) of dishonesty. It was placed before the issuing justice, and I have reviewed it. Some criminal records lead to an irresistible inference of an offender’s habitual dishonesty. This was not one of them. That said, the record was certainly capable of detracting from a finding of credibility.

19Finally, the CI was entrenched in a criminal sub-culture. This is something that can bolster credibility in some respects: R. v. Rocha, 2018 ONCA 84 at para. 24. However, a criminal lifestyle can also tell against a finding of credibility: R. v. Graves-Bissesarsingh, supra, at para. 38.

20The affiant properly disclosed both sides of the credibility issue. There was some evidence detracting from a finding of CI credibility. But there was some evidence supporting it. It was open to the issuing justice to weigh this evidence and draw her own conclusions on the matter.

21In sum, there was evidence upon which the issuing justice could, reasonably, have relied upon to find this CI credible.³

Compelling

22The applicant conceded the tips were relatively compelling. But they could have been, she added, more compelling.

23For example, while the CI gave detailed information about the layout of the applicant’s apartment, she argued they failed to mention the large, visible fish tank there. The CI failed to mention the presence of a dog in the home. The CI never described the applicant’s true hairstyle, only the purple wig.

24Respectfully, the fact that more detail could have been added did not detract from the incontrovertible level of detail in those tips.

25The applicant noted discrepancies in descriptions of the applicant’s height. But for all I know on this evidentiary record, the CI and the MTO height could be right, and the Intellibook height wrong.

26That said, the materiality of “Smurf’s” height paled in comparison to the wealth of other detail provided. The following evidence was available to support a finding that the CI information was compelling:

• The allegations of drug trafficking were firsthand. More specifically, the CI said the applicant had personally been selling her crack cocaine on multiple occasions and for many years;
• The issuing justice was informed of the specific dates, times, and locations of the CI’s recent drug buys;
• The CI told police “Smurf’s” cell phone number, and provided a physical description of her;
• Two tips (paras. 10, 12) were given to police on the same day the CI said they bought crack from “Smurf”;
• The CI provided a specific address of [address vetted] for the applicant, and advised that crack cocaine was sold to them from inside that same address. The issuing justice was told the CI attended the address regularly;
• The CI, while failing to provide a specific unit number or to mention the fish tank/dog, identified it as the basement unit, last door on the southeast corner, with windows facing the rear and a driveway to the east.
• The CI said the bathroom and bedroom were on the left when you enter, the kitchen was straight ahead, and the living room had a couch and TV. They said “Smurf” got crack cocaine from inside that bedroom on the northeast side of the apartment.
• The CI said the applicant’s father lived in that apartment, and during one visit they saw the father watching TV in the living room. He looked very old;
• The CI said the crack cocaine they bought was currently pink in colour, and the issuing justice was provided with specific amounts purchased and specific prices paid;
• The CI said that almost every night, including early morning hours, “Smurf” could be found dealing drugs downtown. More specifically, “Smurf” was dealing at Dundas and Sherbourne, or Sherbourne and Jarvis;
• The CI described one drug deal, date unspecified to the issuing justice, where they bought crack cocaine from “Smurf” while inside a black Infinity;
• “Smurf”, the CI said, was driving this black Infinity. The CI provided a portion of the car’s licence plate.

27There was a wealth of evidence upon which the issuing justice could conclude the CI tips were compelling. Indeed, in my view no other conclusion would have been reasonable.

Corroboration

28The applicant fairly acknowledged police made some corroborative effort. However, she submitted this fell short of any meaningful corroboration. Respectfully, I disagree.

29The following are examples of evidence available, to the issuing justice, to corroborate the contents of the CI information:

• The CI said “Smurf” (who police believed to be the applicant) was a long-time drug dealer, and specifically, of the Schedule I substance crack cocaine.
  • Police record checks showed the applicant convicted of four counts of trafficking a controlled substance;
  • In 2013 and 2018, those convictions were for trafficking a Schedule I substance, with the latter specified as three acts of selling crack cocaine to an undercover officer. ⁴
• The CI provided a detail about how long “Smurf” had been dealing drugs.
  • This detail matched a detail in police database information about the applicant’s past charges.
• The CI said “Smurf” was female, black, five feet tall, slim build, 40 years old, and wears a purple wig.
  • Police database records described the applicant as female, black, 5’9” tall, with black cornrow type long hair;
  • While the affiant disclosed that police records put the applicant’s height at 175 cm, he also disclosed that MTO records placed the applicant’s height at 155 cm (slightly over five feet tall);
  • The applicant’s year of birth was 1976 (making her approximately 45 years old at the time);
• The CI said “Smurf” lives at [address vetted] with her father.
  • Approximately 1.5 years before this ITO, police executed a search warrant at [same vetted address]. Both the applicant and her father were inside the unit at the time the prior warrant was executed;
  • On May 1, 2021, police surveillance observed a black Infinity, registered to the applicant, parked in the rear of [same vetted address] [NB the affiant disclosed other addresses linked to the applicant, including a different address for her on her driver’s licence].
• The CI said “Smurf” dealt drugs out of [same vetted address], and more specifically had sold them crack cocaine from inside that residence.
  • During the execution of this same prior warrant, cocaine and crack cocaine were seized. [NB the affiant disclosed that charges against the applicant were stayed].
• The CI gave a detail about “Smurf’s” name / “Smurf’s” identity.
  • This detail matched, and thus was corroborated by, information in police computer databases about “Smurf’s” name / “Smurf’s” identity.
• The CI said “Smurf” sold her drugs while driving a black Infinity.
  • Police confirmed a black Infinity was registered in the applicant’s name.
• The CI identified a portion of the drug dealer’s licence plate.
  • That portion matched part of the licence plate registered to the applicant.
• The CI said “Smurf” deals drugs downtown almost every night, around midnight and including early morning hours. The CI specified the locations of Jarvis, Sherbourne, and Dundas.
  • On May 3, 2021, at 2:20 am, a surveillance officer saw the black Infinity, registered to the applicant, parked at [different vetted address on] Jarvis Street;
  • The same officer checked the surrounding area, including Sherbourne and Dundas, and saw a woman who appeared to be the applicant;
  • The same officer watched this woman engage in what appeared to be three hand-to-hand drug transactions in the area and at the time that the CI said “Smurf” would be found dealing drugs.

30Much of the information given by this CI was corroborated and available for the issuing justice to conclude as such. Indeed, unlike most cases, the May 3rd surveillance was capable of specifically corroborating that the applicant was engaged in drug trafficking.

31The applicant discounted the May 3rd surveillance because the affiant described the street dealer as “appear(ing) to be the applicant” as opposed to confirming identity. But police did not need to prove identity beyond a reasonable doubt before the issuing justice was allowed to consider this evidence.

32The observations of a woman who “appeared to be” the applicant, in the location specified by the CI, in the early morning hours specified by the CI, near a car linked to the applicant, were placed before the issuing justice and available for her to assess weight and draw conclusions upon – including, reasonably, that this woman was the applicant.

CONCLUSION

33In the totality of these circumstances, I found sufficient evidence upon which the issuing justice could validly issue this search warrant.

34This ITO strongly established a basis to find reasonable and probable grounds to believe drug trafficking was being committed and that evidence of that would be found at the specified location.

35The application must be dismissed, with my thanks to all counsel for the co-operation and professionalism they invested into it.

Footnotes

1. 1I have referred to the CI’s gender, throughout these reasons, as “they/them”. The gender of this CI is unknown to me. The use of “they/them” is not meant to connote any specific gender(s) or preferred pronouns.
2. 2Emails between myself and the Crowns, largely all sent while the defendant’s counsel was virtually present, and which have been sealed and filed with the court.
3. 3At paras. 23 and 24, a lack of credibility is argued due to lack of specifics re type of compensation sought and the timing of the “specific” examples of reliable information given. These are quarrels with the sufficiency of the judicial summary, as opposed to applying to the merits of this argument. For example, the word “recent” is my descriptor, which I used after reviewing the unredacted ITO.
4. 4See Debot, supra, at paras. 56-58