Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Adrian Halley
Before: Justice M. Greene
Reasons for Judgment released on: February 24, 2012
Counsel:
L. Kromm, for the Crown
A. Lobel, for the accused
Greene J.:
Introduction
1On January 11, 2011, two search warrants were executed at Mr. Halley's residence. During the search, the police located a loaded firearm, a folding knife and over $700.00 in cash. Mr. Halley was then charged with seventeen offences relating to these items. Fifteen of the charges relate to the loaded firearm found in Mr. Halley's residence. The remaining two charges relate to the folding knife and money also found in Mr. Halley's apartment. At the start of the trial, Crown counsel advised the Court that she would not be proceeding on the two charges relating to the knife and the money. As a result, Mr. Halley was only arraigned on the fifteen gun related charges.
2The issues raised at trial were as follows:
A) Were Mr. Halley's rights as guaranteed by section 8 of the Charter violated as his residence was searched pursuant to an invalid warrant?
B) If Mr. Halley's rights as guaranteed by section 8 of the Charter were violated, should the items seized as a result of this unlawful search be excluded under section 24(2) of the Charter?
Background
3This matter has a fairly lengthy history. Mr. Halley's case was set to proceed on August 9, 2011 by way of preliminary inquiry. On August 9, however, counsel for Mr. Halley advised the Crown and the Court of his intention to re-elect his mode of trial. Mr. Halley wanted to proceed to trial in the Ontario Court of Justice. The Crown consented to this re-election, but it was recognized by all parties that the matter would not complete on this date as no Charter application material had been filed. Moreover, counsel for Mr. Halley further advised the Court that the only issue at trial was the admissibility of the loaded firearm seized at Mr. Halley's residence. It was conceded that if the evidence was not excluded, all the offences before the Court would be made out.
4The only evidence heard on August 9, 2011 was the evidence of the police officers who executed the search warrant. Subsequent to this date, counsel filed their Charter materials with the Court. The materials provided by counsel included a copy of two identical informations to obtain search warrants (hereinafter ITO), the actual warrants signed by Justice of the Peace Lall, and written argument by both counsel. The ITOs provided to defence counsel and the Court were heavily redacted. The Crown conceded that the redacted ITOs do not disclose grounds to issue warrants. The Crown argued, however, that instead of finding that the search warrants were invalid, the Court should rely on step six from R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) and review the unredacted ITOs to determine if there actually were grounds to issue the warrants. Pursuant to step six from R. v. Garofoli, the trial judge may review the ITO and create a judicial summary of the redacted information for defence counsel. Under this process, defence counsel can still make full answer and defence without the Crown and the Court losing valuable and necessary information.
5Pursuant to the Crown's proposal, the Court received a copy of the original, unredacted ITO and prepared a judicial summary for the Crown to review. The Crown rejected the judicial summary on the basis that it had the potential of revealing the identity of the informants. Ms. Kromm, on behalf of the Crown, prepared her own summary and argued that the summary she provided was sufficiently detailed to allow counsel for Mr. Halley to make full answer and defence. Counsel for Mr. Halley argued that the summary prepared by Ms. Kromm was still too vague to fulfill its purpose. I decided to delay deciding the step six issue until after I heard all the other evidence on the section 8 motion.
6The only other evidence presented on the section 8 motion was the evidence of Det. Cst. Williams, the affiant in this matter. At the close of the cross-examination of the affiant, Ms. Kromm advised the Court that she was conceding the section 8 violation. The Crown also abandoned her argument that the Court rely on step six from R. v. Garofoli. The Crown invited the Court to make a determination under section 24(2) of the Charter using the redacted ITOs and the record as amplified by Det. Cst. Williams' evidence.
Summary of the Evidence at Trial
7On January 10, 2011, Detective Constable Williams prepared two identical ITOs and later that night a justice of the peace issued two search warrants based on the information included in the two identical ITOs, one under the Criminal Code and one under the Controlled Drugs and Substances Act. The former warrant authorized the police to search for firearms and ammunition while the latter warrant authorized the police to search for drugs, cellular telephones, pagers, identification, debt lists, proceeds of crime and drug paraphernalia.
8The warrants listed above were both executed on January 11, 2011. During the course of the search, the police seized the following items:
a) knife
b) $730.00
c) .45 Norinco loaded handgun with 3-4 rounds inside
d) various documents
9No drugs or drug paraphernalia were located.
10Mr. Halley was in the residence at the time of the search. He was arrested and charged with seventeen offences arising from the above-mentioned items.
Grounds to Issue the Warrants
11As previously stated, the two search warrants were issued on identical informations and Det. Cst. Williams was the affiant for both warrants.
12The grounds to issue both warrants came from two untested, confidential informants. The informants did not corroborate each other instead, one informant provided information about the accused selling crack cocaine, while the other provided information linking the accused to a firearm.
13As previously stated, the ITOs filed in support of this application were heavily redacted. The redactions were necessary in order to protect the identity of the confidential informants. Counsel for Mr. Halley took no issue with the redactions and it is accepted that the redactions were both appropriate and necessary. Nonetheless, as a result of the redaction, very little is known about what information confidential informant number 2 (hereinafter CI#2) gave to his/her handler. All that is known is that CI#2 provided some information to his/her handler about Mr. Halley being linked to a firearm.
14More is known about what confidential informant number one (hereinafter CI#1) told the officers. According to the ITOs, CI#1 advised the officers that he/she met up with someone to purchase crack cocaine, this person introduced him/her to someone else who then took CI#1 to 17 Renwick Crescent where CI#1 purchased a 20-piece of crack cocaine from someone he later identified as being Mr. Halley.
15Det. Cst. Williams swore in the ITO that the information received from the two informants gave him grounds to believe that both guns and drugs will be found in Mr. Halley's apartment or that evidence in relation to these crimes be found in Mr. Halley's apartment.
Reliability of the CI's
16Both confidential informants were untested in that neither had provided information to the police before. Det. Cst. Williams was forthright in the ITOs about this fact. He wrote, however, that despite this fact, to the best of his knowledge, both informants were honest and had provided reliable information to the police. He further wrote that he has confirmed the information provided by the two confidential informants and that the information provided has proven to be correct.
17The officer further wrote in the ITOs that both confidential informants can be trusted because they were honest about their involvement in the criminal subculture.
18In relation to their motivation for giving information to the police, Det. Cst. Williams wrote that CI#1 is motivated to help the police for consideration in relation to charges he/she is on and CI#2 is motivated as a concerned citizen.
Corroboration of the Tips
19As previously stated, Det. Cst. Williams wrote in the ITO that he has confirmed that the information provided by the informants was correct. As required, Det. Cst. William then highlighted the results of his investigations. The investigations conducted by the officer are listed at pages five and six of the ITO and include the following:
a) Confirmed that Mr. Halley lives at 17 Renwick Crescent, unit 31, in Toronto;
b) That he had been investigated by police four times in 2010;
c) CPIC has him listed a Dangerous Offender and as possibly being armed with a handgun.
d) CPIC notes that he is prohibited from possessing firearms for life and that he has a criminal record from 2008 for use firearm during the commission of an indictable offence.
e) CPIC also notes that Mr. Halley has a conviction from 2007 for possession of narcotics and a conviction from 2007 for carrying a concealed weapon.
f) In relation to the conviction for use firearm, he was arrested with another party (name redacted).
g) There were two other items of confirmation that were redacted. All that is known is that the redacted items came from police data bases.
Viva Voce Evidence from the Affiant
20Det. Cst. Williams testified at the Charter application. According to Det. Cst. Williams, he has been a police officer for nine years and during those nine years he has prepared two or three other informations to obtain search warrants. Det. Cst. Williams testified that he has had general training in the preparation of search warrant materials but has never received any specialized training in this area. He has put in requests for this training, but has not yet been given permission to attend any programs.
21Det. Cst. Williams testified that he asked Detective Crilly to proofread the ITO for grammatical mistakes. He did not ask Det. Crilly or any other officer to review the substance of the ITOs.
22Det. Cst. Williams testified that he received information about CI#1 and CI#2 from their respective handlers. He was aware that CI#1 had outstanding charges and that these outstanding charges were not related to offences of dishonesty. He did not know, however, whether either of the informants had criminal records as he never asked their handlers about this. When questioned about why he did not make these inquiries, Det. Cst. Williams responded that instead he asked the handlers a general question about the informants' reliability. At the time, he did not think he was required to ask anything further. It was his position that he was entitled to accept the handler's opinion that the informants were reliable. Similarly, Det. Cst. Williams did not know if CI#2 had any outstanding charges. Again, as the handler told him that CI#2 was reliable, in his opinion this was sufficient.
23During the voir dire, Det. Cst. Williams agreed with the suggestion that the only steps he took to corroborate the untested, confidential information was to look up information about Mr. Halley on police data bases. Det. Cst. Williams testified that since the information received from CI#2 related to a firearm, the officer did not want to take the time to conduct surveillance on Mr. Halley, as he was concerned about public safety.
24Det. Cst. Williams was asked during his examination about an entry he made on the ITOs. The entry reads as follows: "CPIC shows Adrian Christopher HALLEY as a Dangerous Offender and as possibly being armed with a handgun". In particular he was asked whether this meant that Mr. Halley had been designated a Dangerous Offender by the Court. The following questions and answers were given:
Q: At Paragraph B, you indicate that CPIC shows Adrian Christopher Halley as a dangerous offender and as possibly being armed with a handgun. What did you mean when you said that Mr. Halley was listed as a dangerous offender?
A: there's two, ah – different types of – I guess, ah – heading that shows up on CIPC once we run an individual. Um, you can be classified as a dangerous offender under the Criminal Code but this wasn't the notification. The notification that, ah -- I'm referring to here is simply more of an officer safety notification that, ah – we're able to put on the system to, um – uh, I guess better - - better safeguard officers who have interaction with an individual. If it's pertaining to, uh—in this example here, if it's pertaining to a handgun, it's—it's giving the officers who might have an interaction with him, a heads up.
THE COURT: Does it actually say, 'dangerous offender,' this way on CPIC
A: that is
The Court: …or is that just the way you wrote it?
A: No, no, it says that on CPIC, But it also advises on CPIC that it's not – it clearly states that it's not, ah – the same as a dangerous offender application under the Criminal Code.
25Det. Cst. Williams was also asked during examination-in-chief to clarify what he knew about CI#1's identification of Mr. Halley as the person who sold him crack cocaine. Det. Cst. Williams testified that the handler advised him that CI#1 was shown a photograph of Mr. Halley and that CI#1 confirmed that the person in the photograph sold him the crack cocaine. The Officer was unable to tell the Court whether CI#1 was shown a single photograph only or whether proper identification procedures had been followed.
Execution of the Warrant
26The warrant was executed just after 7:30 a.m. on January 11, 2011. As there was an allegation of a gun present, ETF was called in to make the initial entry into the apartment and dynamic entry procedures were used. These steps were necessary for officer safety. A number of officers then entered the apartment and searched for drugs, drug paraphernalia, identification and firearms.
27One of the search officers, Officer Rinkoff, testified that during the search he located a computer in one of the bedrooms. Officer Rinkoff admitted to opening one or two picture files on the computer. When asked about why he did this, Officer Rinkoff testified that he was looking for photographs of debt lists. He was then asked whether he agreed with the suggestion that it was probably impermissible to look through the computer and Officer Rinkoff agreed. However, in re-examination, the officer advised the Court that he thought the search warrant permitted him to look in the computer.
28Det. Crilly, another officer involved in the execution of the search warrant, was asked about the lawfulness of looking through computers when executing a drug search warrant. Detective Crilly testified that in his opinion it was lawful in order to look for debt lists, although he personally had never done this and never heard of anyone else doing it.
Issues and the Law
29In the case at bar the Crown made the following concessions:
i) That the redacted ITOs do not disclose grounds to issue the two search warrants
ii) That even if the Court was relying on the original unredacted ITO, given the failure of the affiant to properly investigate the credibility of the two untested, confidential informants, on the amplified record there was no basis for the issuing justice to issue the search warrants.
30In light of these concessions, the Crown invited the Court to find that Mr. Halley's rights as guaranteed by section 8 of the Charter were violated.
31As the section 8 issue is conceded, the only issue remaining is whether or not the evidence, namely the loaded firearm, should be excluded pursuant to section 24(2) of the Charter.
Standard of Review of Search Warrants
32The standard of review of a search warrant is very high. A reviewing judge does not substitute her own view for that of the authorizing justice. The warrant should only be set aside where the Court is satisfied that there was no basis upon which the warrant could have been issued (see R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at paras 68-74).
33In determining whether there was a basis to issue the warrant, the reviewing judge must analyze the warrant as a whole and refrain from analyzing isolated passages (R. v. Brown 2011 ONSC 6223 , [2011] O.J. No. 4624 (S.C.J.) at para 13).
34In assessing whether or not the warrant could have been issued, the reviewing Court looks not only at the ITO but also at any other evidence presented during the application. In the case at bar, the Court was permitted to consider the redacted ITO as well as the evidence of Det. Cst. Williams.
Should the Warrants be Set Aside as There Were No Bases Upon Which They Could Have Been Issued
35As previously indicated, the Crown conceded at trial that there are two bases to set aside the warrants:
a) The redacted ITO does not make out any grounds for the issuance of the warrant;
b) The unredacted ITO does not provide a basis upon which a warrant could have been issued because the affiant failed to verify the reliability/credibility of the informants.
36While the Crown's concessions are very helpful, the Court is still required to make an independent determination as to whether there was a basis to issue the search warrants. I will review each of the concessions made by the Crown.
A) The Redacted ITOs Do Not Disclose Any Bases to Issue the Warrant
37I agree with both counsel that the redacted ITOs do not reveal grounds for issuing either of the warrants. In relation to the information received from CI#1, it is clear from the redacted ITO that CI#1 told his/her handler that he/she purchased crack cocaine from Mr. Halley. As a result of the redactions it is unknown when this drug transaction occurred. On the amplified record, however, it is known that the transaction was "recent". It is impossible to assess the validity of the officer's belief that drugs will be found in the apartment without more certainty about when the drug transaction took place. Moreover, as was made clear from the examination of the affiant, it is unknown whether or not CI#1's identification of Mr. Halley is reliable given the absence of information about the identification process (albeit this was not disclosed in the ITO). Given the redactions and the evidence of the officer, I accept the Crown's concession that the redacted ITO does not make out grounds to issue the warrant under the Controlled Drugs and Substances Act.
38I further agree with both counsel that the redacted ITO does not reveal a basis to issue a Criminal Code search warrant to search for guns. The information provided by CI#2, which is the information allegedly linking Mr. Halley to a firearm, is so heavily redacted that it is impossible to discern what information was provided to the police about Mr. Halley being in possession of a firearm. On the face of the redacted ITO there is no basis to believe that Mr. Halley was in possession of a firearm or that one would be found in his residence.
39For these reasons, I agree with both counsel that the redacted ITOs do not reveal a basis to issue the search warrants and as result the search warrants must fall.
B) Failure to Test the Tips Provided by the Informants
40The Crown also conceded that given Det. Cst. Williams' failure to inquire into the credibility of the two confidential informants, even if the Court considered the original, unredacted ITO, the test for issuing either a Criminal Code search warrant or a warrant under the Controlled Drug and Substances Act would not be met.
41The warrants in the case at bar were issued based largely on information received from untested, confidential informants. In R. v. Debot, [1989] 2 S.C.R. 1140, the Supreme Court of Canada set down three questions that must be asked in determining whether or not the information relied upon by the police justifies a search where the basis for the search is information received from a "tip" originating outside the police. These questions are:
a) Is the source credible?
b) Is the information compelling?
c) Is there corroboration of the tip?
42The Court must look at all the circumstances to determine if the concerns are met. In looking at the totality of the circumstances, the Court must consider a) the degree of detail of the tip; b) the informer's source of knowledge; and, c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.
a) Is the Source Credible?
43As previously noted, the Crown concedes that the affiant did not take sufficient steps to determine if the two CI's were credible. In the case at bar, the sole step taken by the affiant to confirm the credibility of the informants was to ask the handlers if they were reliable. Ms. Kromm conceded that the affiant was required to do more than ask this question. He was required to take further steps to assess the informants' credibility, including determining whether they had criminal records and whether they had outstanding charges. He was also required to include this information in the ITO. As was noted by Allen J. in R. v. Rocha, 2011 ONSC 2518 , [2011] O.J. No. 1987 (SCJ), lack of information about an informant's criminal record "can affect how much reliance the authorizing court can confidently place on the informant's information".
44When I consider all the evidence presented at trial, I agree with the Crown that on the amplified record there was no basis for either search warrant to be issued.
45In relation to CI#1 I make the following observations and findings of fact. I appreciate that some of these findings are different from the concessions made by the Crown:
a) The ITO is silent on whether CI#1 has a criminal record. This silence would lead the average justice to conclude that CI#1 had no record, in particular in light of the officer's obligation to make full and frank disclosure in the ITO.
b) The failure to look into the criminal record is particularly troubling given that the officer wrote in the ITO that CI#1 has been "honest about his/her association with the criminal subculture makes it more likely that the information supplied by the informant is accurate". It is clear now, however (albeit it would not have been clear to the issuing justice) that the affiant had no knowledge as to whether CI#1 was honest about his/he association with the criminal subculture because the officer knew nothing about CI#1's criminal activities.
c) CI#1's credibility is of heightened concern in light of the fact that he/she was motivated to speak to the police for consideration in relation to his/her outstanding charges.
d) The affiant further wrote that CI#1's information was reliable because he had been able to confirm it. There was little corroboration, however, of the information provided by CI#1. The affiant only confirmed that Mr. Halley had a prior criminal record, but no record for trafficking in narcotics. Moreover, while the officer was able to confirm that Mr. Halley lives in the building where CI#1 purchased the crack cocaine, so do many other people.
46In relation to CI#2, many of the same concerns arise. Again, I appreciate that some of my findings differ from the concessions made by the Crown:
a) The ITO is silent on whether CI#2 has a criminal record. This silence would lead the average justice to conclude that CI#2 had no record, in particular in light of the officer's obligation to make full and frank disclosure in the ITO.
b) The ITO is also silent on whether CI#2 had any outstanding charges. This is concerning for the same reasons outlined above.
c) The failure to look into the criminal record and the existence of any outstanding charges is particularly troubling given that the officer wrote in the ITO that CI#2 has been "honest about his/her association with the criminal subculture makes it more likely that the information supplied by the informant is accurate". It is clear now, however (albeit it would not have been clear to the issuing justice) that the affiant had no knowledge as to whether CI#2 was honest about his/he association with the criminal subculture because the officer knew nothing about CI#2's criminal activities.
d) This Court is unable to determine if the affiant was able to confirm the information provided by CI#2 given the redactions. All that remains is the affiant's bald assertion that CI#2 was proven reliable because his information was proven to be correct.
b) Was the Information Compelling?
47In the case at bar, the information from CI#1 cannot be seen as "compelling". Firstly, there is no indication on the redacted ITO as when the drug transaction mentioned by CI#1 took place. Having said that, the affiant did testify that the transaction was "recent". Secondly, on the amplified record before the Court, I am not satisfied that there is compelling evidence that CI#1 purchased crack cocaine from Mr. Halley as opposed to some other person. In the ITO, the affiant wrote that CI#1 identified Mr. Halley as the person who sold him a 20-piece of crack cocaine. On the record, as amplified by the cross-examination of Det. Cst. Williams, it is unclear whether any weight could ever be placed on CI#1's identification of Mr. Halley as the person who sold him crack cocaine. The only information the affiant had was that CI#1 was shown a single photograph of Mr. Halley and confirmed this was the person who sold him crack cocaine. The officer did not know if a proper photographic line-up was conducted. Had the issuing justice been aware of the potential frailties in the identification, absent asking for more details about the identification process, the issuing justice would not have been able to conclude that there were reasonable grounds that Mr. Halley sold crack cocaine to CI#1.
48In relation to CI#2, the ITO is so heavily redacted that it is impossible for the Court to conclude that the information is compelling. Looking only at the redacted ITO, CI#2 has given no compelling information about Mr. Halley having access to a gun or drugs.
c) Was the Information Corroborated?
49The only steps taken to corroborate the information from the confidential informants were data base checks. The police were able to confirm that Mr. Halley has a conviction from three years earlier for use of a firearm and a conviction for carry concealed weapon and possession of drugs from 2007. Moreover, CPIC lists that Mr. Halley may be armed and that he is dangerous. This is not the most compelling corroboration, however, in light of the fact that the officers received information that Mr. Halley was in possession of a firearm, the officers cannot be faulted for choosing to move swiftly in order to protect the public. Had the informants' credibility been properly examined by the affiant, the limited corroboration done by Det. Cst. Williams would have been sufficient to justify issuing the warrant.
50When I consider all three of these factors together, that is the complete failure of the officer to investigate the credibility of the untested, confidential informants, the lack of "compelling" information (at least as disclosed in the redacted ITO) and the limited corroboration (at least as is disclosed in the redacted ITO), I find that on the amplified record there is no basis upon which these two warrants could have been issued. I therefore find that the search warrants were invalid and that the warrantless search of Mr. Halley's home was a breach of his rights as guaranteed by section 8 of the Charter.
Section 24(2) of the Charter
51In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct)
(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) Society's interest in the adjudication of the case on its merits.
The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
52In the case at bar there is no real dispute between the parties in relation to the latter two prongs of the Grant test. In relation to the second prong of the Grant test, the Crown properly concedes that the impact of the breach on the Charter-protected interest of the accused is high and that this prong militates in favour of exclusion of the evidence. The police entered the accused private residence with the ETF using a dynamic entry. Courts at every level have consistently held that there is a high expectation of privacy in a house and that entry into a house without valid grounds is a serious intrusion on an individual's privacy (see R. v. Silveira (1995), 97 C.C.C.(3d) 450 (S.C.C.) and R. v. Dhillon, 2010 ONCA 582 , [2010] O.J. No. 3749 (C.A.))
53In the same vein, counsel for Mr. Halley properly conceded that the third prong of the Grant test strongly militates in favour of inclusion of the evidence. Mr. Halley is facing fifteen different charges in relation to the loaded firearm found in his residence. The gun seized is reliable evidence and is necessary for the Crown to prove its case. Moreover, the offences in question are very serious and go to the heart of protecting the public. It is well established that there is a heightened public interest in trying firearm-related offences on their merits given the escalating gun problem in Canada and the risk guns pose to public safety. I further appreciate that since Mr. Halley was already prohibited for life from possessing firearms, there is even a greater societal interest in trying this case on its merits.
The Seriousness of the Breach
54The main area of dispute in the case at bar, is under the first prong of the Grant test – the seriousness of the Charter-infringing conduct.
55As was noted in R. v. Dhillon, supra, at paragraph 45, the first line of inquiry under the Grant test "requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts… effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct".
56It is incumbent on trial judges under this first prong to assess the seriousness of the violation in terms of the "gravity of the offending conduct by state authorities". The seriousness of the state-offending conduct lies along a continuum where on the one end the evidence is obtained through inadvertence or minor violations and at the other end evidence is obtained though wilful or reckless disregard for Charter rights. As was noted in R. v. Grant, supra, at paragraphs 73-74, state conduct falling on this latter side of the spectrum will "inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute".
57Crown counsel argued that the police conduct in the case at bar was not serious. She argued that the officer made a relatively minor mistake when he failed to make detailed inquiries about the credibility/reliability of the untested informants. But this one little error, she argued, does not support a finding of negligence, careless disregard for Charter rights or bad faith. There was ample evidence, she argued, that the officers acted in good faith. In support of this argument, the Crown pointed to the following facts:
a) The affiant did make general inquiries about the reliability of the informants, he just failed to make specific inquiries.
b) The affiant sought and obtained warrants.
c) The affiant did not intentionally mislead the issuing justice.
d) This case involved information about a firearm, the police were obligated to act swiftly.
58Counsel for Mr. Halley argued that the officer's conduct was grossly negligent, that it demonstrated a careless disregard for constitutional standards and that it had the effect of misleading the issuing the justice. He argued that Det. Cst. Williams' failure to make proper inquires about a) the credibility of the informants and b) about the strength of the identification coupled with his decision to use misleading language in the ITO shows a level of recklessness and careless disregard for constitutional standards.
59In assessing the seriousness of the state conduct, the Court must be mindful that one of the reasons for striking the warrant in this case is because the Crown cannot disclose the full contents of the ITO. In the case at bar, the ITO is heavily redacted. This was necessary to protect the identities of the two confidential informants. As a result of all the redactions, the ITOs do not disclose reasonable and probable grounds to issue the warrants. If this were the sole basis for striking the warrant, then there would be absolutely no evidence of bad faith on the part of the officers. As was noted by Code J. in R. v. Learning, 2010 ONSC 3816 , [2010] O.J. No. 3092 (SCJ), Charter violations of this nature are only "a product of the operation of the law" (the law that requires police, Crown counsel and Judges to protect informer privilege). If this was the extent of the police conduct leading to the Charter breach, the first inquiry under the Grant test would support inclusion of the evidence because the violation would not have involved any state misconduct.
60The analysis in the case at bar, however, is not that simple. There is other state conduct in issue here that led this Court to conclude that the warrants were invalid. The Crown has conceded and the Court agrees that given the officer's failure to make inquiries about the reliability of the untested, confidential informants the warrants could not have been issued. The full impact of this failure on the overall ITO is unknown in light of all the redactions. Nonetheless, in assessing the seriousness of the state conduct, the Court does have sufficient information to assess whether the affiant was careless, reckless or intentionally misleading in preparing the unredacted portions of the ITO.
61In my view, the evidence before the Court supports a finding that the officer was extremely careless when he drafted the ITO to the point that it demonstrates a lack of regard to constitutional standards. I further find that the redacted ITO, when read as a whole and taking into account the amplified record before the Court that was materially misleading on the issue of the reliability/credibility of the confidential informants and on the compellability of the information provided by CI#1. I reach this conclusion for the following reasons (many of which have already been articulated above):
a) The affiant failed to make any real inquiries into the purported identification by CI#1 that Mr. Halley was the person who sold him crack cocaine. CI#1's tip only has value if it was Mr. Halley who sold him the drugs. CI#1 did not know Mr. Halley prior to the purchase and sale of the crack cocaine and it appears that the exchange was relatively brief. Given all that is known about the frailty of eyewitness identification, the failure of an officer with nine years experience to ensure that CI#1 really identified Mr. Halley as the person who sold him drugs was careless. The effect of Det. Cst. Williams' failure to make the proper inquiries and in the way he ultimately drafted the ITO is that the issuing justice would have been mislead into believing that CI#1 had in fact identified Mr. Halley as the person who sold him drugs when in fact this might not be the case. The failure to make any inquiries into the identification process is further problematic in the case at bar when one considers the reality that CI#1 was motivated to help the police for consideration on charges he/she is currently on. If he/she is giving information only to avoid criminal responsibility for his/her own charges, real credibility concerns arise if CI#1 was only shown one photograph by the police as opposed to a proper line-up. There is a real risk that CI#1 was just telling the officers what they wanted to hear as opposed to making a proper identification. Given the way the ITO is written the issuing Justice would not have been alive to this concern.
b) The affiant's notation in the ITO that CPIC shows Mr. Halley to be a Dangerous Offender is also very misleading. The officer failed to make it clear to the justice that Mr. Halley is considered by police to be dangerous but has not been designated a Dangerous Offender under the Criminal Code. In my opinion, there is a very big difference between the two. The Crown argued that this passage is not significant and the officer had no intention of misleading the justice of the peace. I disagree. It was clear during the officer's testimony that he was aware of the above-mentioned distinction, that he was aware that it was an important distinction and that the descriptor of calling someone a dangerous offender is easily confused with the Criminal Code Dangerous Offender designation. The officer admitted that CPIC specifically draws a distinction between the two concepts. In light of this evidence, I find that the affiant was well aware of the potential for confusion, knew the impact this would have on the issuing justice (to make the accused look even more dangerous and therefore increasing the need for the warrant) and chose not to clarify the meaning of the phrase "dangerous offender". What is particularly telling is that on page 5 of the ITO when the affiant used the phrase "Dangerous Offender", he capitalized both words thereby suggesting a formal designation as opposed to a descriptor. It is hard to accept that the officer would not have been alive to the potential this paragraph had of misleading the issuing justice into believing that Mr. Halley had in fact been designated a Dangerous Offender. At the very minimum, his failure to make it clear in the ITO that the term "dangerous offender" was a descriptor as opposed to a formal Criminal Code designation shows a level of high level of recklessness and careless disregard for constitutional standards in his drafting of this ITO.
c) The affiant failed to make any detailed inquiries into the reliability of the untested CI's. I disagree with the Crown that this is a minor mistake. I appreciate that the affiant did in fact ask about the general reliability of the informants, but it is difficult to accept that the officer did not understand his obligation to, independently assess the reliability of the informants and to provide sufficient information to the issuing justice so that the issuing justice could assess the reliability of the confidential informant. Moreover, as the ITO is completely silent on whether or not CI#2 has any outstanding charges and is also silent on whether or not either of the CI's have criminal records, this silence has the effect of misleading the issuing justice into reaching the conclusion that CI#2 had no outstanding charges and that neither CI had a criminal record. Given an officer's legal obligation to provide full and frank information to the issuing justice, the absence of any mention of a criminal record would inevitably lead the reader of the ITO into the mistaken belief that the CI's did not have criminal records.
d) As noted earlier in this judgment, the affiant's failure to look into the criminal record of either informant is particularly troubling in this case in light of his comment in the ITO that the informants have been "honest about his/her association with the criminal subculture makes it more likely that the information supplied by the informant is accurate". It is clear now that the affiant had no knowledge as to whether CI#1 or CI#2 was honest about their associations with the criminal subculture because the officer knew nothing about the informants' criminal activities. While I appreciate that the affiant, in writing this passage, was likely referring to the informants' admission about purchasing drugs, knowing persons who have access to drugs and knowing Mr. Halley, a person with a criminal record for guns, this does not take away the misleading effect of this passage. I am satisfied that in writing this one passage, the officer did not intend to mislead the issuing justice, but I do find that he was careless as to whether the passage was truly accurate.
62In my view this case is similar to the case of R. v. Dhillon, supra, in that the affiant was extremely careless in drafting the ITO to such an extent that it had the effect of being misleading. As was noted by the Ontario Court of Appeal at paragraph 51 of R. v. Dhillon, supra"in these circumstances, the level of police carelessness can only be characterized as significant. Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of that spectrum".
63In my view, this case, like R. v. Dhillon, falls on the more serious side of the spectrum of police conduct. I appreciate that the facts of this case are not on all fours with the facts in the case of R. v. Dhillon, supra. In particular, in the case at bar, the affiant did not misstate emails and the results of surveillance because he was rushing. However, after listening to the examination of Det. Cst. Williams, and hearing him testify in court, I do find that he had no real appreciation for what his obligations were in relying on untested informants. This is somewhat surprising and difficult to accept given that R. v. Debot was decided over 20 years ago. Moreover, Det. Cst. Williams demonstrated a complete disregard for the need to be accurate, fair and frank to the issuing justice about the strengths and weaknesses of his application. So while this case is not on all fours with R. v. Dhillon, I do find that there are relevant similarities in the overall conduct of the affiant in this case with the affiant in the Dhillon case. In my view, when I consider all the evidence, I am satisfied that Det. Cst. Williams' conduct falls on the more serious side of the spectrum of police conduct.
Balancing the Three Grant Factors
64The type of balancing required under section 24(2) of the Charter is qualitative not quantitative in nature. The balancing must consider the effect of admitting the evidence on the long term repute of the administration of justice (see R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494).
65As previously stated, this is not a case where the Charter violation only arises because the police and the Crown have an obligation to protect confidential informants. Nor is this a case, in my view, where the warrant missed the mark by very little. In my assessment of the evidence, the affiant was careless in so many ways in drafting the ITOs that his conduct amounts to recklessness.
66I am mindful that Det. Cst. Williams did take the step of obtaining a search warrant and that he properly felt that he had to act swiftly in order to properly protect the public. I accept Det. Cst. Williams' evidence that surveillance on Mr. Halley to confirm he was trafficking in narcotics or carrying a firearm was not a realistic option in light of the public safety concerns. I agree that once any officer is in possession of reliable information that someone is in possession of a firearm it is incumbent on them to act swiftly. This does not, however, permit him to bypass constitutional standards. The officer still had to make sure that he/she is in fact in possession of reliable information that a suspect is in possession of a firearm. In the case at bar, Det. Cst. Williams did not take the steps necessary to satisfy himself or the issuing justice that there was reliable and credible information that Mr. Halley was in possession of a firearm.
67One additional factor the Court must consider in balancing the three Grant factors is the overall police conduct in the execution of the warrant. In the case at bar, in executing the search warrant, officer Rinkoff searched Mr. Halley's computer by opening a couple of picture files. The officer claimed that he was looking for photographs of debt lists. I reject the officer's explanation. Firstly, I note that he originally agreed with defence counsel that he probably was not permitted to look in Mr. Halley's computer but later in re-examination claimed that he thought the search warrant allowed for him to look into the computer. He provided no explanation for this obvious inconsistency. Moreover, it is difficult to understand why he thought Mr. Halley would take a photograph of a debt list and store the photograph in the computer. Had the officer opened an Excel spread sheet or even a Word document it might be reasonable to conclude that a drug dealer would record the debt list on the computer, but it really defies logic that a drug dealer would keep a written copy of a debt list, photograph it and store the photograph of the debt list in his picture files. I appreciate that the officer testified that he saw this once on television, but I did not find this aspect of his evidence particularly believable or compelling. Moreover, while Det. Crilly testified that in his opinion an officer may be able to look in a computer for a debt list, he also admitted that he has never done this before and has never heard of anyone else doing it. In my view, Officer Rinkoff overstepped the limits of the search warrant when he looked through Mr. Halley's computer. I appreciate that in the grand scheme of things, this factor alone would not be particularly compelling and could never justify excluding evidence. I only point it out because it does show an ongoing disregard by the police for Mr. Halley's constitutional rights and is therefore another factor to consider under section 24(2) of the Charter.
68Crown counsel referred me to a number of cases that she argued are similar to the case at bar and support inclusion of the firearm. In particular, I was referred to the case of R. v. Campbell, [2009] O.J. No. 4132 (S.C.J.). In that case, Marrocco J. refused to exclude guns and ammunition found in Mr. Campbell's residence despite the fact that the police obtained a warrant to search his residence without taking any steps to corroborate the tip of an untested informant. In my view, there are a number of significant differences between the case at bar and R. v. Campbell that allow me to distinguish the cases. Firstly, the trial Judge found that while the officers did not take sufficient care to ensure that there were reasonable grounds for the warrant, he still found that the officers acted in good faith. In the case at bar, I have found that the level of recklessness of Det. Cst. Williams in preparing the ITO precludes the Crown from relying on the good faith of the officers. Moreover, in Campbell, the offences were arguably more serious. The police seized three firearms, 241 rounds of ammunition for different calibre weapons, a knife, a substantial amount of money, crack cocaine and almost 500 grams of marijuana. In the case at bar, the police found one loaded firearm, a knife and some money. In my view these differences are significant to the overall balancing of the Grant factors.
69In the case at bar, I have found that the conduct of the police was very serious and that impact of the Charter breach on the accused was significant given that it involved an unauthorized search of a private residence. In my view, this is the type of conduct the Court should be dissociating itself from. I appreciate that the evidence in question is highly reliable and that the Crown's case fails if the evidence is excluded. I also appreciate that there is a heightened societal interest in prosecuting gun cases. Having said that, the level of carelessness of the police in the case at bar is so high that in my view, admission of the evidence would bring the administration of justice into disrepute. Therefore, the .45 Norinco loaded handgun, with 3-4 rounds inside it, found inside Mr. Halley's residence, will be excluded.
Released February 24, 2012
Justice Mara Greene