Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240909 DOCKET: COA-23-CR-0527

Tulloch C.J.O., Nordheimer and Madsen JJ.A.

BETWEEN

His Majesty the King Respondent

and

Sean Michael Cartmer Appellant

Counsel: Michelle Psutka, for the appellant Colleen Liggett, for the respondent

Heard: September 5, 2024

On appeal from the conviction entered on August 29, 2022, by Justice Lia M. Bramwell of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of possession of a Schedule 1 substance (fentanyl) for the purpose of trafficking, possession of a loaded prohibited firearm, and possession of a firearm while prohibited. He was sentenced to a global sentence of seven years, less three years pre-trial custody.

[2] At trial, the only issue was whether evidence obtained further to a search warrant issued under s. 487 of the Criminal Code was obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms and should be excluded under s. 24(2). The trial judge dismissed the appellant’s application to exclude the evidence, concluding that the issuing justice “could have issued the authorization [for the warrant] on the record before her.”

[3] The appellant appeals from conviction, arguing that the ITO could not support the issuance of the warrant. He submits that the trial judge erred in finding that the ITO was not misleading, and in finding that the tips received from two confidential informants (“CI’s”) and an anonymous caller were compelling, credible, and corroborated. He asks that acquittals be entered.

[4] We dismissed the appeal with reasons to follow. These are the reasons.

A. BACKGROUND

[5] In August 2020, the Kingston police received information from two CI’s stating that an individual staying at the Maple Crest Inn was in possession of drugs and a handgun, and was selling fentanyl from room 124. The information included a physical description of that individual, and that he was known as “Biggie.” As a result, the police conducted surveillance of the Maple Crest Inn on August 6 and 7, 2020, and confirmed the individual to be the appellant based on previous observations and a mugshot.

[6] On August 7, 2020, based on the information from the CI’s, the anonymous caller, and their surveillance observations, the police sought a warrant to search the appellant’s hotel room. The ITO indicated that the appellant was a suspended driver, bound by four weapons prohibitions, and who had been subject to 81 “charges”. The issuing justice in turn authorized the search warrant.

[7] While executing the warrant, the police seized a bullet proof vest, a BB gun, gun parts, a weigh scale with what appeared to be traces of fentanyl on it, two containers containing blue fentanyl, cutting agent, a dime bag containing unknown white pills, empty unused dime bags, and a hatchet.

[8] When the police were executing the warrant, the appellant tried to flee by running across the hotel parking lot, dropping a loaded .22 calibre pistol onto the ground. The police subsequently arrested the appellant, and seized the weapon as well as fentanyl that was found in two places on his body. A cellphone with a label marked “Biggie” was found outside the hotel room. The appellant was charged with offences under the CDSA and Criminal Code.

[9] At trial, the appellant argued the issuing justice did not have reasonable and probable grounds upon which to issue the warrant. He asserted that a statement in the ITO that police observed “multiple people… attending the unit consistent with drug trafficking” (emphasis added) was misleading and should be excised from the ITO, and that the information obtained by the police from the CI’s did not satisfy the requirement that the information be compelling, credible, and corroborated. He therefore sought exclusion of the evidence under s. 24(2) of the Charter.

B. THE DECISION BELOW

[10] The trial judge dismissed the application, providing detailed and cogent reasons why she did not accept either of the appellant’s arguments. She correctly set out the law applicable to her review of the warrant application and reviewed the information set out in the ITO. She acknowledged that criminal records of the CI’s were not before the issuing justice. The trial judge carefully considered the totality of the information obtained from the CI’s, the anonymous caller, and the surveillance observations, rather than pieces of evidence in isolation. The trial judge concluded:

The issuing justice had information before her from two confidential informants, believed to be reliable by the Affiant, and an anonymous caller. The information, when taken together, was that the [appellant] was in very recent possession of a loaded handgun and drugs, which he was selling in a specific room in the Maple Crest Inn. The informants had provided reliable information to police in the past and their information was corroborated by the information of the other and by the anonymous caller. The police observed the [appellant] in the specific location described by the informants and the police observed activity that the Affiant characterized as consistent with drug trafficking.

Even if the Affiant’s opinion that the surveillance observations were consistent with drug trafficking was to be excised from the grounds to be considered, I find that the issuing justice could still have issued the authorization.

C. ANALYSIS

[11] The test for the trial judge on her review of the warrant application was “whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued,” not whether the application for the warrant should have been granted at all: R. v. Vu, 2013 SCC 60, [2013] S.C.R. 657, at para 16. The standard is “credibly based probability”: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81, citing Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167. The issuing justice may draw inferences from the facts set out in the ITO, so long as those inferences are reasonable: R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241, at paras. 96, 101; R. v. Jones, 2023 ONCA 106, at para. 14.

[12] The test for this court is whether the reviewing judge erred in law in her interpretation and application of that standard. The scope of appellate review is quite narrow: Jones, at para. 11.

[13] The affidavit in support of the ITO must be truthful and should fully and plainly set out the facts. The reviewing court is concerned with identifying any deficiencies in the ITO that might have misled the authorizing judge including overstatements, misstatements, or a failure to state material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 47, 53. The reviewing court determines, based on the ITO as excised and potentially amplified, whether there is “sufficient credible and reliable evidence upon which the issuing judge could be satisfied that there were reasonable and probable grounds to issue the warrant”: R. v. Mackey, 2020 ONCA 466, 392 C.C.C. (3d) 230, at para. 54.

[14] In a case where the ITO relies on tips from a CI, the court must consider whether the tips are compelling, whether they come from a credible source, and whether the tips are corroborated. The ITO must include information that will allow the issuing justice to assess the CI’s reliability, and explain what makes the tips compelling, including unfavourable details, if any, about the informer. The court will consider the totality of the evidence. A weakness in one area may be compensated by strengths in the other two factors: Jones, at para. 12 citing R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168; R. v. Crevier, 2015 ONCA 619, at para. 68.

[15] The trial judge carefully considered the allegedly misleading statement in the context of the police surveillance, noting that the appellant did not seek to cross-examine the affiant on the ITO. While we agree that no information derived from the police surveillance after the submission of the warrant application to the issuing justice ought to have been considered by the trial judge, there was nevertheless sufficient information before her to reach her conclusion on this issue. While, as noted by the trial judge, the affiant could have included further detail in the ITO regarding the police surveillance observations, he was an experienced officer whose experience informed his belief that the pattern of frequentation of the hotel room (including by a known fentanyl user who attended for 17 minutes during which the blinds were drawn), was “consistent with drug trafficking.”

[16] The trial judge also conduced a careful application of the Debot criteria in relation to Source A, Source B, and the anonymous caller. She found the information provided by all three sources to be compelling, based on recency and specificity, and the fact that it was based on first-hand knowledge and observations. The trial judge found source A and B to be credible based on previously having provided reliable information to the police, and the anonymous source to be credible based on corroboration by other aspects of the investigation. Further, the trial judge considered, in detail, the extent to which the information from each source was corroborated by information from the other. It was open to her to conclude that the Debot criteria were met.

[17] The trial judge correctly noted that it would have been preferable to have criminal record information for Source A and B, but considering the totality of the evidence, she determined that was not fatal on the facts of this case. We agree. While she did not address the possibility that the anonymous caller was the same person as either Source A or B, as suggested by the defence, this is not, in our view, determinative.

D. CONCLUSION

[18] We see no basis to intervene. It was for these reasons that the appeal was dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“L. Madsen J.A.”