Court File and Parties
Court File No.: CR-16-90000246-0000 Date: 2017-02-16 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: Marlon Lawrence-Coulthurst and Troy Lawrence-Coulthurst
Counsel: Christopher Leafloor, for the Respondent, Her Majesty The Queen Scott Pearl, for Marlon Lawrence-Coulthurst Elizabeth Bristow, for Troy Lawrence-Coulthurst
Heard: January 3-4, 2017
S.A.Q. Akhtar J.
Overview
Introduction
[1] The accused, Troy and Marlon Lawrence-Coulthurst, apply under s. 8 of the Charter of Rights and Freedoms to exclude items found after the execution of a Controlled Drug and Substances Act (CDSA) search warrant at Unit 501 Dixington Crescent in Toronto on 19 February 2014.
[2] As a result of the search, police discovered 33.26 grams of cocaine, 482.45 grams of marihuana, Ziploc bags, digital scales, a debt list, a safe, cash in the amount of C$1,400 and US$90.00, and identification in the name of both accused.
The Information to Obtain
[3] The Information to Obtain (ITO) the warrant specified that the offence under investigation was Troy Lawrence-Coulthurst’s possession of cocaine and marihuana for the purposes of trafficking contrary to s. 5(2) of the CDSA.
[4] The ITO listed the following items as potential evidence within the unit: marihuana, cocaine, baggies and packaging material, scales and weighing equipment, proceeds of crime, a debt list, cell phones, and identification belonging to Troy Lawrence.
[5] A substantial part of the grounds to obtain the warrant was based on information provided by a confidential informant (CI). Accordingly, parts of the warrant were redacted to protect the identity of the CI prior to disclosure.
The Test
[6] In reviewing a challenged authorization, the reviewing judge does not conduct a de novo hearing of the validity of the authorization or substitute his or her views for that of the authorising judge. The review is a consideration of the record placed before the authorising judge and an evaluation of whether it discloses sufficient evidence, that might reasonably be believed, on the basis of which the judge could have issued authorization: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, at para. 51; R. v. Morelli, 2010 SCC 8, at para. 40; R. v. Mahmood, 2011 ONCA 693, at para. 99.
[7] The ITO must outline reasonable and probable grounds to believe an offence has been committed and that there is evidence to be found at the place of search: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 18. An authorization is presumed to be valid from the outset and the burden of establishing invalidity rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, at para. 83. It is only if the reviewing judge concludes that on the material before the authorizing judge, as amplified by the evidence on the review, there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorizations existed, that the authorization would be held to be invalid: R. v. Lising, 2005 SCC 66, sub. nom. R. v. Pires, at para. 8.
[8] Facts within the ITO that the affiant knew or ought to have known were erroneous must be excised: World Bank Group v. Wallace, 2016 SCC 15, at para. 119-121. As well, any information redacted on the ground of privilege cannot be considered unless the Crown makes an application under the so-called Step Six of the Garofoli procedure. This method permits the reviewing judge to look beneath the redactions to decide whether the test for issuance is satisfied. However, before doing so, a judicial summary of the redacted material must be disclosed to the defence so that they are able to mount a sub-facial challenge to the warrant as part of their right to make full answer and defence: R. v. Crevier, 2015 ONCA 619, at paras. 89–90.
Leave to Cross-examine the Affiant
[9] As part of the s. 8 motion, the applicants sought leave to cross-examine the affiant, Police Constable John Xiouris, on a number of areas relating to the ITO pursuant to Lising.
[10] After hearing submissions, I granted leave on a narrow number of issues set out as follows:
- The experience and knowledge of the affiant in the investigation of drug trafficking. This cross-examination was relevant to para. 17 of the ITO; and
- The steps taken by the affiant in obtaining the telewarrant which led to the search of Unit 501. This cross-examination was relevant to whether the police had complied with statutory pre-conditions for obtaining the warrant.
Could the Warrant Have Issued?
The Judicial Summaries
[11] The Crown conceded that the ITO in its redacted form would not satisfy the test of review and applied under Step Six to have this court consider the information found in the unredacted warrant. Mr. Leafloor, for the Crown, submitted a draft judicial summary for consideration in accordance with Crevier. After reviewing this draft, I suggested a number of items that could be disclosed without jeopardising the identity of the CI. The Crown acceded to nearly all of the proposed additions and a final judicial summary outlining the general nature of the redactions was subsequently disclosed to the defence. The incremental draft versions of the judicial summary have been made sealed exhibits on this motion.
[12] After receiving the final judicial summary, the defence were prepared to proceed to argue the merits of their application.
The Arguments Advanced by the Applicants
[13] Ms. Bristow, counsel for Troy Lawrence-Coulthurst, submits that the warrant could not have issued even in its unredacted form.
[14] First, she contends that the affiant failed to discharge his obligation of full, frank, and fair disclosure by failing to include the fact that he had only sworn one previous ITO.
[15] I reject that argument. In Araujo, the Supreme Court of Canada, at para. 46, emphasised the need for full and frank disclosure of material facts. The fact that this was only the affiant’s second ITO has very little relevance to the issue of whether the warrant could have issued. The key question for the issuing justice was whether the police had demonstrated reasonable and probable grounds that evidence pertaining to drug trafficking would be found in the premises. In that context, the question of how many ITOs the affiant had been involved with or authored was immaterial.
[16] Secondly, Ms. Bristow claims that the police only had a suspicion that the items sought were in Unit 501. She submits that the police had to have some direct evidence that drug dealing was taking place inside the apartment prior to seeking the warrant.
[17] I disagree. The police were obliged to set out their grounds for believing that the items sought, including the drugs, were at the place to be searched. At para. 17 of the warrant, the affiant wrote that, in his experience, drug dealers would store such items as the drugs for sale, weighing equipment, and materials in which the drugs were packaged in their residence. When cross-examined, the affiant made clear that his experience was based on previous arrests of drug dealers, conversations with sources, and discussions with experienced officers. I find the affiant’s conclusion to be sufficiently grounded.
[18] I am at a loss to understand why the police would need information that drug deals were actually taking place within the residence prior to seeking the warrant. It makes perfect sense that the drugs and accompanying paraphernalia had to be stored somewhere; and the most obvious place would be the suspect’s home.
[19] By way of analogy, if a tip received by the police informed them that a particular suspect was always seen in public with a firearm, would that mean the police would have to wait for further information that the firearm was also seen in the suspect’s home or car to obtain a warrant to search those places? The answer must be no.
[20] Finally, Ms. Bristow argues that the informant’s tip failed to meet the criteria set out in R. v. Debot, [1989] 2 S.C.R. 1140. Without this information, the ITO could not be sustained. The Debot test requires the tip to be compelling, credible and corroborated. Although there are three criteria, there is only one test as explained by Wilson J., in Debot, at para. 60:
I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that 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.
[21] In the case at bar, I find the information provided by the informant to be compelling. It was current and contained detailed information about how the informant knew the suspect was a drug dealer, how the informant knew the suspect, what drugs the suspect sold, and the fact that the informant had observed the suspect in possession of a controlled substance. I agree that the credibility criteria, however, is not strong. The informant had never been previously used by the police and, by providing the information, was acting in his “self-interest.”
[22] However, I find that there is considerable corroboration of the tip. Debot indicated that a suspect’s criminal history could constitute confirmation of an informant’s tip and the record in this case contains convictions and outstanding charges for drug trafficking. Moreover, the physical location of the apartment within the building was confirmed by visiting officers and further corroborated the information provided by the CI.
[23] I find that the compelling nature of the tip taken together with the confirmatory evidence is sufficient to compensate for the weakness in the credibility criteria.
[24] For the reasons set out above, I find that the issuing justice could have properly issued the warrant and, accordingly, I find no breach of the accuseds’ s. 8 Charter rights.
Was the Telewarrant Properly Issued?
[25] In a supplementary argument, Mr. Pearl, counsel for Marlon Lawrence-Coulthurst, asks this court to decide that the telewarrant was improperly issued by failing to comply with the statutory conditions for its issuance.
[26] Section 487.1 of the Criminal Code permits resort to the telewarrant procedure to obtain a search warrant whenever the officer believes that an indictable offence has been committed and it would be “impracticable” for the officer to “appear personally before a justice.” In addition, s. 487.1(4) of the Criminal Code stipulates that any information seeking a telewarrant “shall include,” amongst other things, “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.”
[27] In this case, the affiant’s reason for using the telewarrant procedure was that, as the courts had closed for the day, there was no Justice of the Peace available to permit personal attendance. The affiant also stated his belief that duty Justices of the Peace “will only respond to emergency situations.”
[28] Mr. Pearl argues that the warrant should not have issued because the affiant failed to disclose any information demonstrating an urgency to obtain a search warrant at the time of the application. He submits that the affiant should have waited until the courts re-opened to obtain a search warrant from a justice.
[29] I disagree. First, there is no requirement that urgency is required before the police apply for a telewarrant. In R. v. Le, 2009 BCCA 14, the British Columbia Court of Appeal was faced with the same argument and observed, at para. 35, that this argument showed a misunderstanding of the telewarrant procedure:
The appellant suggests that as there was no urgency to carry out the search, Constable Lane should have waited until the next day when she could have appeared in person to obtain the warrant, or she should have asked another officer, who was working during the day, to obtain the warrant. In my opinion, the telewarrant procedure is available so that police officers who work on shifts or in communities where justices of the peace are not available at all hours may carry out their duties, and it is not for the court to interfere in the management of police investigations by requiring them to organize themselves to avoid using the telewarrant procedures in the Code or risk being found in violation of those provisions.
[30] See also: R. v. Clark, 2015 BCCA 488, at paras. 65–66.
[31] Secondly, the term “impracticable” means more than inconvenience but less than impossible: R. v. McKenzie, 2016 ONSC 245, at para. 19; R. v. Rutledge, 2015 ONSC 1675, at para. 111. In other words, in order to be “impracticable,” personal attendance to obtain the warrant must be difficult in the circumstances. The affiant need not demonstrate that they took all possible alternative steps to obtain a warrant, but simply provide a basis for the impracticality. In this case, Constable Xiouris did exactly that by explaining the lack of availability of a Justice of the Peace (J.P.) outside of court hours. There was no evidence to refute this fact. I accept it as true and note that the telewarrant was applied for at 7:48 p.m. In addition, the authorising J.P., in receiving the application, would have been aware of this fact and would have taken it into account when issuing the warrant: R. v. Lacelle, 2013 ONCA 390, at paras. 6–7.
[32] If I am wrong on this point, and the issuance of the telewarrant constituted a breach of the accuseds’ s. 8 rights, I would still admit the evidence under s. 24(2) of the Charter. Using the framework set out in R. v. Grant, 2009 SCC 32, I find that that the breach itself was not serious as the warrant would have issued, in any event, the next day: R. v. Farewell, 2006 BCSC 372, at para. 56. The second branch of the test, the impact of the Charter protected interests of the accused, might have been adversely affected because the search was of a residence. However, the third step of the Grant test, whether exclusion would bring the administration of justice into disrepute, favours admission of the evidence. Exclusion of the highly reliable evidence found would result in the end of the prosecution. Balancing the Grant factors, I find that the evidence should not be excluded and dismiss the application.
[33] On a final note, Ms. Bristow argued that the time frame between sending the warrant and its receipt by Officer Xiouris - four minutes according to the time stamps - was too short a time period for the J.P. to have properly read and considered the contents of the ITO. I decline to consider this argument as it is based purely on speculation.
[34] For the reasons set out above, I find that the telewarrant was properly issued and the application is dismissed.