WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20230214 Docket: C70247

Judges: Lauwers, Harvison Young and George JJ.A.

Between:

His Majesty the King Respondent

and

Darren Jones Appellant

Counsel: Jeff Marshman, for the appellant Rebecca De Filippis, for the respondent

Heard: February 2, 2023

On appeal from the conviction entered on November 20, 2020 by Justice Geoffrey J. Griffin of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of possessing child pornography. The only issue at trial was whether there were sufficient grounds to issue the warrant to search the appellant’s apartment, where he lived with his brother – a suspected drug trafficker and target of the search. The trial judge dismissed the appellant’s application challenging the warrant, concluding that the issuing justice “could have granted the authorization”: R. v. Garofoli, [1990] 2 S.C.R. 1421.

[2] The appellant appeals from conviction, maintaining that the ITO could not support issuance of the warrant. He submits that the record, considered as a whole, did not establish reasonable grounds to believe that evidence of drug trafficking would be found at his apartment.

[3] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. Here are those reasons.

Background

[4] On January 17, 2019, the police sought and obtained a warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) to search the appellant’s apartment. The warrant application relied primarily on information from a confidential informant (“CI”), who advised the affiant that the appellant’s brother was selling fentanyl and crystal methamphetamine. While executing the warrant, the police found the appellant lying naked in his bed with a tablet computer displaying pornographic images of children. The appellant was arrested and charged with offences under the CDSA, which were later withdrawn, as well as the child pornography offences. The appellant’s brother, who arrived as the search was being conducted, was arrested and charged with offences under the CDSA.

Information to Obtain & Follow Up Investigation

[5] The affiant deposed that he had met with a “proven” CI who told him that: 1) the appellant and his brother lived at 107-339 Amherst Drive, Loyalist Township; 2) the appellant’s brother sells crystal meth; 3) he can call or text the appellant’s brother who has crystal meth “readily available” 4) “various people come to the apartment to buy drugs”; 5) the appellant’s brother uses an alias; 5) the appellant’s brother packaged crystal meth in plastic bags, and 6) that he had personally purchased drugs from the appellant’s brother.

[6] During the voir dire the affiant testified that: 1) he was unsure whether the CI had personally witnessed anyone coming to the apartment to buy drugs; 2) the CI did not say that they had purchased drugs from the appellant’s brother at his apartment; 3) the CI did not say that drugs were located at the apartment; and 4) the alias provided by the CI matched an alias for the appellant’s brother in a police database.

[7] Upon a further search of the database, the affiant discovered that, on January 10, 2019, the OPP were called to the appellant’s apartment because of a suspected fentanyl overdose; and that the person who overdosed was administered Narcan by his girlfriend, who was found to be in possession of three “loaded” needles, spoons with fentanyl residue, and dime bags with white residue. During his testimony, the affiant clarified that he did not know whether the appellant or his brother were at their apartment at the time.

[8] The affiant contacted the apartment building’s property manager, who confirmed that the unit was rented and occupied by the appellant and his brother. The manager further advised that the two had “frequent guests [who have been] trespassed from the property”, and that there had been “lots of complaints of traffic in and out”. The manager told the affiant that this was a “suspected drug house if you want [my] opinion”. During his testimony, the affiant confirmed that he had never met the manager in person; that the manager had not provided specific information about the frequency or number of people who visited the apartment; and did not say that he had personally observed frequent traffic. The affiant also testified that the police did not conduct surveillance of the property.

[9] Appendix ‘D’ to the ITO describes the CI as a “carded informant” with the OPP, and as someone “entrenched in the drug criminal subculture”. The affiant deposed that he had been interacting with the CI for under a year, and that the CI had “never provided [him] false information or lied”. The CI, who did not have a criminal record, was motivated by financial gain but any compensation was dependent on evidence being located and charges being laid.

Decision Below

[10] The trial judge reviewed the facts surrounding the search, the information relied upon in the warrant application, and cited the relevant legal principles. He acknowledged the deficiencies in the ITO, including that there was only one CI; that the CI did not say he had personally witnessed other people purchasing drugs at the apartment; and that the police did not conduct surveillance to confirm information received from the CI or the property manager. The trial judge, however, found that:

[T]here was compelling information by the informant that was corroborated to the extent that the apartment is occupied and rented by the [appellant and his brother]. As well, at that apartment in the time period in question, namely January of 2019, there had been a suspected drug overdose and a person found in that apartment was in possession of suspected fentanyl residue and dime bags with white residue. Moreover, the justice of the peace, upon reading paragraph six of the ITO, would have learned that the property manager told [the affiant] “there seems to have frequent guests that we have trespassed from the property, and I have lots of complaints of traffic in and out. Suspected drug house if you want our opinion.”

Discussion

[11] When reviewing the sufficiency of a search warrant, the test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued, and not whether in the opinion of the reviewing judge, the application should have been granted at all”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 252, at para. 40. On appeal from a trial judge’s review of a search warrant, the test is “whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant”: R. v. Liberatore, 2014 NSCA 109, 318 C.C.C. (3d) 441, at para. 14. The scope of appellate review is quite narrow: the reviewing judge’s findings of fact, and the inferences drawn from those facts, are owed significant deference and, absent an error of law, misapprehension of evidence, or a failure to consider relevant evidence, we should not intervene.

[12] This appeal turns on the application of well-settled legal principles. Where, as here, the grounds in support of a warrant rely on information from a CI, there must be a sufficient evidentiary basis for the issuing justice to conclude that the information is capable of supporting a reasonable belief. In R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, the Supreme Court directs us to consider these factors:

First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?

[13] This is not a checklist of independent requirements. Weaknesses in one area may be compensated by strengths in another. It is the “totality of the circumstances” that must meet the standard of reasonableness.

[14] To issue a warrant under s. 11(1) of the CDSA, the ITO’s contents must satisfy the authorizing justice that there are reasonable grounds to believe an offence has been committed and that evidence of that offence will be found at the place to be searched. The ITO need not conclusively establish the commission of an offence nor the existence of relevant evidence. “Reasonable grounds” is a standard of credibly-based probability: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168. The authorizing justice is permitted to draw inferences, so long as the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 82.

[15] While the police could have done more (i.e., conduct surveillance), and while the ITO could have been more fulsome, we see no basis to interfere with the trial judge’s decision that the warrant could have issued.

Was the CI credible?

[16] It was open to both the issuing justice and reviewing justice to conclude that the CI was credible. According to the affiant, the CI was: 1) known to him; 2) a “carded informant” with the OPP which, together with other indicia of reliability, may be considered: R. v. Brown, 2021 ONCA 119, 403 C.C.C. (3d) 457, at para. 50; 3) entrenched in the drug criminal subculture; 4) had never lied to him or provided false information; and 5) had no criminal record. While the CI had a financial motivation to assist the police, we observe that, while this is a factor to consider, financial compensation is quite often provided to informants and should not, in and of itself, render a source uncredible: R. v. Kebede, 2018 ONSC 6304, at para. 36.

[17] Given the limited information we have about what led the affiant to conclude that the CI was credible, we accept that this is likely the weakest of the Debot factors in this case. Even so, there was at least some information upon which to assess the CI’s trustworthiness.

Was the tip compelling?

[18] Whether a tip is compelling depends on the level of detail, and whether it is based on recent and personal knowledge: R. v. Rocha, 2018 ONCA 84, at para. 23. In addition to describing the apartment, the CI described the appellant’s brother, including his physical appearance, age, nickname, cell number, where he lived, and who he lived with. The CI also provided information about what drugs the appellant’s brother sold, how they were packaged, and that “various people [would] come to [his] apartment to buy drugs”. We know that at least some of the information the CI provided to the police was based on his personal observations. And lastly, the CI said that he had purchased drugs from the appellant’s brother directly. Based on all of this information, the trial judge reasonably found that the tip was compelling.

Was the tip corroborated?

[19] There is no question that more could have been done to further corroborate what the CI told the affiant. However, that alone is not a reason to intervene. In our view, there was sufficient corroboration of the tip. Not only did the police confirm many of the biographical details provided by the CI, but they were also able to confirm that the criminal activity described by the CI appeared to be taking place. For instance, the property manager’s indication that there was considerable traffic in and out of the unit, which led to their suspicion that it was in fact a drug house, corroborated the CI’s indication that “various people” attend the apartment to purchase drugs. The fact that someone had recently overdosed in the apartment was also corroborative.

[20] The appellant submits that the overdose is of limited value because there was no evidence that either he or his brother were there at the time of the overdose and because no drugs were located in the unit. We disagree. For evidence to be corroborative, at least in this context, it does not need to conclusively prove criminal activity, nor does it need to confirm every detail: R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21, at para. 20. What matters is that the independent information conforms sufficiently to what one would have anticipated based on the informant’s information, such that “the possibility of innocent coincidence is removed”: R. v. Dunkley, 2017 ONCA 600, at paras. 15-16; Debot, at p. 1172. Here, an individual overdosed on drugs in the apartment, and another was found possessing drugs – the very drugs the CI said the appellant’s brother was selling. Furthermore, because these two people were found in the brothers’ residence, it was open to the issuing justice to infer that they had some connection to either the appellant or his brother. In conjunction with the other corroborative evidence, and the credible and compelling nature of the tip, it was open to the trial judge to find that the possibility of innocent coincidence was sufficiently removed in the circumstances.

Conclusion

[21] The appeal is dismissed.

“P. Lauwers J.A.”

“Harvison Young J.A.”

“J. George J.A.”