COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacDonald, 2012 ONCA 244

DATE: 20120418

DOCKET: C50733

Laskin, Goudge and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessiah MacDonald

Appellant

Michael Dineen, for the appellant

Randy Schwartz, for the respondent

Heard:

On appeal from the conviction entered on April 16, 2009 by Justice Paul French of the Ontario Court of Justice, sitting without a jury.

Laskin J.A.:

A. introduction

[1] Acting on an anonymous Crime Stoppers tip, the police obtained a warrant to search the residence where the appellant, Jessiah MacDonald, lived. Police officers conducted the search in the middle of the night. They found two loaded handguns.

[2] The appellant was charged with illegal possession of the handguns, breach of recognizance and several related offences. The sole issue at trial was whether the grounds to issue the warrant were sufficient. The trial judge ruled that the grounds were sufficient, and that, therefore, the appellant’s right under s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search or seizure had not been breached.

[3] Following the trial judge’s ruling, the handguns were admitted into evidence, the appellant conceded the Crown’s case, and the trial judge convicted him of the offences as charged. The appellant was sentenced to two years less a day in prison plus three years probation. He appeals his convictions.

[4] The appellant makes two submissions: (1) the trial judge erred in finding that there were sufficient grounds to issue the warrant. In particular, the appellant argues that the police did not corroborate the anonymous tip in any meaning way, and that they exacerbated the unreasonableness of their search by conducting it in the middle of the night; (2) the handguns should not have been admitted into evidence under s. 24(2) of the Charter.

B. the legal framework

[5] Before discussing the anonymous tip and the police’s efforts to corroborate it, I shall briefly address the legal framework that governs this appeal. There are two aspects: the requirements for authorizing the issuance of a search warrant, and the standard of review.

(1) The Requirements for Authorizing the Issuance of a Warrant

[6] The justice issuing the warrant must have reasonable grounds to believe that an offence has been committed. The standard is one of reasonable probability. The material in support of the warrant must raise a reasonable probability of discovering evidence of a crime. See R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

[7] Where the application for the warrant is based largely on information coming from a confidential informant, the court must make three inquires:

• Was the information predicting the crime compelling?

• Was the source of the information credible?

• Was the information corroborated by the police before conducting the search?

These are not watertight inquiries. It is the “totality of the circumstances” that must meet the reasonable probability standard. See Debot, supra.

[8] So, for example, where, as in this case, the police rely on information coming from an anonymous source, the second inquiry is problematic. The court has no way to assess the credibility or reliability of the source. Thus, the quality of the information (the first inquiry) and the amount of corroboration (the third inquiry) must compensate for the inability to assess the credibility of the source. A higher level of verification is required. See R. v. Hosie, 1996 450 (ON CA), [1996] O.J. No. 2175 (C.A.) at para. 15.

(2) Standard of Review

[9] A judge reviewing the authorization of the issuance of a warrant has a limited mandate. That mandate was set out by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at 1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[10] Here, the record before the authorizing judge was neither amplified nor excised on review. Thus, the question for the reviewing judge was whether the authorizing judge could have issued the warrant.

[11] On appeal of the reviewing judge’s decision, the usual principles of appellate deference apply. This court should not interfere unless the reviewing judge erred in law or made an unreasonable finding of facts. See R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168 (C.A.).

C. did the trial judge err in finding that there were sufficient grounds to issue the warrant?

(1) The Crime Stoppers Tip

[12] In April 2008, the Toronto Police Service received a Crime Stoppers tip about the appellant from an anonymous source. According to the tipster, the appellant was born on January 24 (no year provided), used the alias “Morrison”, and lived with his surety in Etobicoke.

[13] The tipster described the appellant as a non-white male, 6-feet 2-inches tall, 160 pounds, with long black hair and brown eyes. He said that the appellant had a tattoo of a spider web on his hand.

[14] The tipster also said that the appellant had drugs and guns at his home, and is a known gun carrier and drug dealer. He claimed that he had seen the appellant “flashing his gun”. Finally, the tipster said that the appellant could be found at his mother’s or his uncle’s house and that he was driving a rented car.

(2) The Police’s Corroboration of the Information Provided by the Tipster

[15] Because a central question on this appeal is whether the police sufficiently corroborated the tipster’s information before conducting the search, I summarize in chart form the information given by the tipster and the corroboration of that information. In doing so, I rely largely on the helpful chart provided by Crown counsel, Mr. Schawrtz, in his factum.

Information Given by the Tipster

Corroboration

The appellant’s date of birth is “January 24”.

Police databases confirm that the appellant’s date of birth is January 24, 1988.

The appellant is male, non white, 6’ 2” tall and 160 pounds, with black long hair and brown eyes.

CPIC describes the appellant as male, non white, 6’ 4” tall and 146 pounds.

The appellant has a tattoo of a spider web on his hand.

CPIC describes the appellant as having a tattoo of a spider web with flames on his left hand.

The appellant is a drug dealer and has drugs in his house.

In January 2006, the appellant was found in possession of 6.58 grams of crack cocaine and was charged with possession for the purpose of trafficking. He was ultimately convicted of possession of cocaine.

The tipster saw the appellant “flashing his gun”, and the appellant has guns at his house.

The appellant has a lengthy criminal record. His record lists several serious offences of violence, including assault, robbery, assault with intent to resist arrest, aggravated assault, carrying a concealed weapon, and escaping lawful custody.

In January 2006, the appellant was found in possession of a loaded AK 47 assault rifle that had been converted to fire ammunition in fully automatic mode. He was convicted of possession of a prohibited firearm.

The police affiant, a member of the Guns and Gangs Task Force, knows that it is very common for drug traffickers to arm themselves.

The appellant was bound by two separate firearms prohibition and probation orders that prohibited possession of a weapon.

The appellant uses the alias “Morrison”.

CPIC lists “Morrison” as the appellant’s alias.

The appellant resides at his surety’s house.

The appellant is currently before the court accused of aggravated assault and several related offences. The allegations pertain to a stabbing in which the appellant allegedly chased down the victim and stabbed him in the back and slashed his face. As a result of these charges, the appellant is bound by a recognizance that requires him to reside with his uncle under house arrest.

On April 7 and April 8, 2008, police observed the appellant coming and going from his uncle’s house.

The appellant’s surety’s house is in Etobicoke.

The appellant’s uncle’s house is located at 54 Alhart Drive, in the north-west area of Toronto near Islington Ave and Albion Rd.

The appellant usually hangs out at his mother’s house or at his uncle’s house.

Police occurrence reports confirm that the appellant has resided with his mother in the east end of Toronto and has been investigated by the police in that area on numerous occasions.

The appellant is affiliated with a gang.

No corroboration.

The appellant drives a rental vehicle.

On April 7 and April 8, 2008, police observed the appellant driving a vehicle registered to a car rental company. On April 8, 2008, police observed the appellant attending at the car rental outlet and exchanging one rental car for another.

(3) The Trial Judge’s Ruling

[16] The police conducted the search in 2008; the application to exclude the handguns from evidence was heard in December 2008 and January 2009; and the trial judge gave his ruling dismissing the application on February 3, 2009. After reviewing the facts (which were put before him by an agreed statement) and the applicable principles, the trial judge concluded:

Having considered the evidence and the submissions of counsel, I adopt the position of the Crown. In my view, the police might have done more; however, considering that they had information of guns on the street, so to speak, they did that which was reasonable. In my view, the surveillance conducted by the police was reasonable. I find that their investigation provided some reasonable corroboration of the information received from the anonymous tipster. Considering the totality of the circumstances, in my view, the authorization could have been given for the search warrant to have been issued. The application is therefore dismissed.

(4) Were the Grounds to Issue the Warrant Sufficient?

[17] The main question on this appeal is whether the trial judge erred in concluding that the authorizing justice could have been satisfied that the reasonable grounds standard was met. In my view, he did not err. He stated the correct test on review, and his finding that the justice could have authorized the issuance of the warrant was a reasonable finding.

[18] Because the credibility of the source cannot be determined, the totality of circumstances assessment must focus on whether the tipster’s information was sufficiently compelling and whether it was sufficiently corroborated.

[19] The appellant says that the information given by the tipster was not particularly compelling; the Crown says that it was very compelling. I come down in the middle. I would make two points. First, although a good deal of the information was biographical, and thus likely widely known, it was nonetheless very detailed. The tipster provided specific information about the appellant’s appearance, date of birth, place of residence, alias, bail status, family connections and driving practices. Second, the tipster had first-hand knowledge that the appellant was involved with guns. He saw the appellant “flash” a gun.

[20] In the light of these two points, the information given by the tipster was reasonably compelling. However, I agree with both parties that this ground of appeal turns on whether the police sufficiently corroborated the information, bearing in mind that the anonymity of the source called for more confirmation than otherwise. At the same time, the police were not obliged, before conducting the search, to confirm the very criminality alleged by the tipster. See R. v. Lewis, 1998 7116 (ON CA), [1998] O.J. No. 376 (C.A.) at para. 22; and R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.); aff’d 2008 SCC 65, [2008] 3 S.C.R. 451.

[21] It seems to me that the police largely confirmed the tipster’s information. The police record and data banks confirmed the accuracy of the detailed biographical information given by the tipster. I accept that on its own, this degree of confirmation likely would not be sufficient to justify the authorization.

[22] However, the police investigation also confirmed that the appellant had in the past possessed both drugs and guns, and was a known violent offender, who was bound by two separate firearms prohibitions and probation orders prohibiting the possession of guns. Admittedly, this history was drawn from the appellant’s criminal record. The appellant argues that a criminal record may provide some independent confirmation of a tipster’s information but should not be given a great deal of weight. He correctly points to Martin J.A.’s observation in Debot that although a criminal record deserves some weight, by itself it does not make out reasonable probability.

[23] Accepting that to be so, the cogency of the criminal record depends on its similarity to the criminal activity alleged by the tipster and the age of the record. Here, the appellant was convicted of possession of a prohibited firearm, the very criminal activity the tipster alleged, and that conviction was registered within two years of the anonymous tip. These considerations give the criminal record a fair measure of cogency.

[24] Overall, the appellant’s record together with the confirmation of the detailed biographical information given by the tipster reasonably support the trial judge conclusion that the authorizing justice could have granted the authorization. I would not give effect to this ground of appeal.

(5) Was the Search Unreasonable Because if was Conducted at Night?

[25] The affidavit in support of the warrant sought authorization under s. 488 of the Criminal Code the execute the warrant at night, on the following grounds:

I am respectfully requesting that a night time entry (after 9:00 PM) be granted with respect to the execution of the search warrant for 54 Alhart Drive. I am requesting night tome entry to ensure police officers are given enough time to gather the resources necessary to execute this warrant. Any delay in the execution of this warrant could result in the loss of evidence. Any delay in seizing the firearm places members of the public in danger.

[26] The authorizing justice granted authorization for night time entry. The police conducted the search at the residence of the appellant’s uncle just before 3:00 a.m. on April 9, 2008. By that time, the appellant was already in custody. Earlier that night he had been arrested for failing to comply with his recognizance. In this factual context, the appellant submits that the search was unreasonable because it was conducted at night. I do not accept this submission.

[27] The appellant’s submission raises two separate issues. The first issue is whether the authorizing justice had a reasonable basis to authorize a night time search. When the authorization was granted, the appellant was not in custody. In my opinion, the grounds in the affidavit provided a sound basis to allow the warrant to be executed at night.

[28] The second issue – the issue the appellant focuses on – is whether the police ought to have delayed the search until day time because the appellant was in custody. In my view, the police were justified in not delaying the search and instead conducting it in the middle of the night. The appellant did not live alone; he shared the residence with others. The police had reasonable and probable grounds to believe there were firearms in that residence. And even though the appellant was in custody, he had the opportunity to contact the other occupants and tell them to hide or remove the guns. Thus, the police had a legitimate concern that if they waited to execute the warrant, they would compromise public safety and put the community at risk.

[29] Night time searches of a private residence should be carried out only in exceptional cases. See R. v. Sutherland (2000), 2000 17034 (ON CA), 52 O.R. (3d) 27 (C.A.). This is one of those cases. The situation might well have been different if the appellant lived alone. But he did not.

[30] Moreover, the following considerations mitigated the intrusiveness of the search: the police told the appellant about their proposed search before they carried it out; there is no evidence that they conducted a “no knock” entry, or that they had their guns drawn, or even that they frightened anyone. In the light of all these circumstances, the night time search was not unreasonable.

[31] Because I have concluded that the search did not breach s. 8 of the Charter, it is unnecessary to address the second issue raised by the appellant, the application of s. 24(2) of the Charter.

D. conclusion

[32] The trial judge did not err in concluding that the authorizing justice could have authorized the issuance of the search warrant. I would dismiss the appeal.

Released: Apr. 18, 2012 “John Laskin J.A.”

“JL” “I agree S.T. Goudge J.A.”

“I agree H.S. LaForme J.A.”