ONTARIO COURT OF JUSTICE

Parties

Between:

Her Majesty the Queen, Respondent

— And —

Arnell Sam, Applicant

Ruling on Voir Dire

Section 8 Charter of Rights

Crown Counsel: L. Price, P.P.S.C.

Defence Counsel: A. Monaco

Harris, J.

Introduction

[1] This is an application under section 8 of the Charter of Rights challenging the judicial authorization to search a residence and seize controlled drugs found on the premises. Counsel have agreed to litigate the constitutionality of the search warrant on the facial validity of the "Information to Obtain" alone on this voir dire. Initially, the prosecutor took the position the Applicant did not have standing to raise the constitutionality of the search and seizure, but upon hearing evidence from the Applicant, he conceded the issue.

[2] The test I will apply in this determination is set out in Hunter v. Southam [1984] 1 S.C.R. 145: "does the evidence amount to a credibly-based probability rather than a suspicion" that evidence of a criminal offence will be found at the residence in question. The same test was restated later in R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) as: "is there a reasonable probability an offence has been committed".

[3] This review is entirely confined to the "four corners" of the I.T.O. alone without reference to an amplified record (had cross-examination of the Affiant been permitted), or reference to judicial summaries under step 6 of the R. v. Garofoli, [1990] 2 S.C.R. 1421 procedure in which the Court could have been asked to consider part or all of the unredacted document ─ that was heavily edited to protect the identities of the confidential informants.

[4] There are a few notable principles that offer guidance for this review:

(a) Being an ex-parte application for a search warrant, there is an obligation on the affiant to provide full and frank disclosure of material facts…. set out truthfully, fully and plainly: R. v. Araujo 2000 SCC 65

(b) The result of the search cannot be used to demonstrate the reliability of the evidence that was before the issuing justice. Ex post facts justifications are not permitted: R. v. Kokesch (1960), 61 C.C.C. (3d) 207 (S.C.C.).

(c) The language used in the I.T.O. is important. Boiler plate phrases such as "a reliable source" and "the investigation revealed" are to be avoided: R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont .C.A.).

(d) The template for evaluating the reliability of an informant's tip involves consideration of three important elements: see R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.)

(i) Was the information predicting the commission of an offence compelling?

(ii) Was the source credible?

(iii) Was the information from the source corroborated by police investigation prior to making the decision to conduct the search?

(e) Finally, R. v. Debot stipulates additional factors for consideration:

(a) A mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on criminal activity… would be insufficient. The information must contain certain detail to ensure it is based on more than mere rumours or gossip. Highly relevant to whether the information supplied constitutes reasonable grounds are….whether the information discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past, or confirmation of part of his or her story by police surveillance;

(b) In the circumstances of an anonymous tip or untried informant, the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source: R. v. Debot, p. 217.

Analysis of the Information to Obtain

[5] In determining whether the Information to Obtain an authorization for a search warrant in the instant case meets the sufficiency test I will consider its facial validity in terms of the three factored analysis set out in R. v. Debot, supra:

Were the Tips Compelling?

Source 1

[6] On the basis of the words "currently in possession of a handgun" I will infer that sometime recent to the execution of the search warrants, source 1 said he/she went to apartment 704 - 35 Warrender Avenue, Toronto to purchase crack cocaine. The source said he/she observed a handgun there – which was described as a 9mm silver semi-automatic with a bottom clip ─ and cocaine. The apartment location in a building was described, the phone number of the target male provided and the indication was that he was a black male, 5'7", stocky build, short hair. The source also identified the dealer and the dealer's girlfriend from police photos. This source also advised that the target sells heroin. Further, this source stated that the target male sometimes arms himself when dealing drugs outside the apartment and keeps his name secret in the community.

Source 2

[7] This is based on information from a police officer who investigated a target of the same name, Arnell Nathanial Sam born 83/08/25, in 2010, at which time he learned from a confidential informant (Source 2) the following: Arnell Sam lived with Dejanna Mignott. He carried a firearm for protection. He sold heroin as well as powder and crack cocaine. Source 2 said that (in 2010) Arnell Sam was dealing from an apartment on Richview Road, Toronto and that Arnell Sam dealt a "heavy amount of drugs."

Were the Tips Credible?

Source 1

[8] It was said that this source has a criminal record and was involved in the criminal subculture in Toronto. "Has provided information police have acted on before." "Has not provided false information to his handlers." "Has an FPS No. and convictions on file." "Has provided information".. for some police purpose.

Source 2

[9] It was said that he/she was considered "highly" reliable. Has provided information that has led to…" and " had previously helped to seize two firearms." It is said that the information provided by source 2 gives the information provided by source 1, "even more credibility."

Were the Tips Corroborated by Police Investigation?

[10] Police checks determined that Dejanna Mignott had a driver's licence registered to 35 Warrender #704, Toronto. Her previous address was 1B Richview Road Toronto. (It was noteworthy that source 2 had said that Arnell Sam was dealing from an address on Richview Road in 2010). Police confirmed that there was a prior domestic dispute between Mignott and Sam in which it was reported that Mr. Sam was the father of her children. Police records refer to Nathaniel Arnell Sam with the same birth date as Arnell Nathaniel Sam who was investigated for drugs in 2010. Source 1 was shown photos of Arnell Sam and Dejanna Mignott and he/she identified the two as the dealer and his "girl." Police investigation indicated that Mr. Sam was on a weapons prohibition order from charges dating from 1999 and having spoken to a security guard at 35 Warrender Ave., they were able to confirm that the apartment at #704 - 35 Warrender Ave. was registered to Dejanna Mignott and that the apartment is located in the building in exactly same location as described by source 1.

The Issue

[11] The question for determination is – was there a reasonable probability of a criminal offence taking place at 35 Warrender Ave. # 704, Toronto at the time of the application for a search warrant?

Sufficiency Analysis (Part 1)

[12] The first order of business is to exercise all erroneous, misleading, boiler-plate, ritualistic phraseology. The following commentary in the I.T.O. will be excised, while all times bearing in mind the dictum from case authorities that "errors and misleading information is not necessary fatal": R. v. McClure [2001] O.J. No. 13 (S.C.J.):

(I) Paragraph 2:02 refers to "the reliability of the confidential source, combined with his/her motivation leaves almost no doubt that there is a considerable amount of cocaine, heroin and a firearm stored at 35 Warrender Ave, No. 704. This is all problematic promotional exaggeration and will be excised completely. There is no information about motivation or evidence of considerable amounts of cocaine and heroin. R. v. Araujo requires that information be set out truthfully and plainly and this is a careless distortion of the known facts.

(II) Para. 2:03 states "during the investigation a second highly reliable confidential source provided further information on Arnell Sam…this added even more credibility". This commentary improperly suggests that confidential source 2 provided information during the investigation. In fact, this information was given to DC Tan by source 2 in 2010, at least a year before the search warrant was executed, and it was made to seem, by the way this paragraph was worded, that it was just received during the investigation directly from the source. Accordingly, the stale-dated nature of the information provided to another police officer will be duly noted. The point being ─ if this information was of any real value one wonders why it was not acted upon in 2010.

(III) Paragraph 2:04 states: "It is believed that ammunition for the gun is being stored within the address". It is further believed that a considerable quantity of cocaine and heroin is being stored at 35 Warrender # 704. Once again, this is not a truthful rendition of the known facts, as there were never any bullets observed or "considerable quantities of cocaine and heroin" in December, 2011.

(IV) Paragraph 3:03 is highly problematic as noted below:

(i) "There are several hits on file for Nathaniel Sam born 1983/08/25." This information is not fairly or plainly stated and will be excised. If hits are convictions the I.T.O. should say so – otherwise this is just more character damaging rhetoric that sounds like the shop-worn cliché: "the person is known to police".

(ii) "Nathanial Sam…is much better known to police as Arnell Nathaniel Sam, born 1983/08/25." "Much better known" falls into the same category of questionable rhetoric as noted above under paragraph (i).

(iii) "Arnell Sam… is prohibited by law from possessing any weapons stemming from a firearm possession charge in 1999." I will accept that Arnell Sam was on a prohibited order but I reject the baffling reference to a possession charge in 1999. It is hard to imagine why an Affiant would neglect to note what conviction resulted in the order. It is only a conviction that is relevant here.

(iv) In paragraph (iv) the Affiant states that Mr. Sam has had "multiple contacts with police" – this is just more character-damaging rhetoric and it will be deleted.

(v) In paragraph (v) there is reference to a suspended driver's licence. This is not relevant and will be deleted.

(vi) It states: "Arnell Sam has 2 registered firearm possession charges". This reference will be deleted as it is unclear whether the Affiant is referring to convictions or undated charges that were withdrawn or are still outstanding.

(vii) The commentary in paragraph vii continues: "Arnell Sam has faced firearm and drug trafficking charges but the charges were withdrawn". This kind of reference leaves an Affiant open to an insinuation that he is suggesting the target "got away with it once before". Withdrawn charges have no place in an I.T.O. and result in an unfair picture of the occupant of a target residence: see R. v. Paryniuk, 2012 ONCJ 852 (Ont.C.J.).

Sufficiency Analysis (Part 2)

[13] Having exercised the foregoing references for the reasons provided, I will now proceed to consider the Information to Obtain in its totality utilizing the R. v. Debot evaluation template under the headings (a) compelling; (b) credible; (c) corroboration.

Compelling

[14] The combined information from source 1 and source 2 (although from a year before and dated) is somewhat compelling. Source 1 provides information of a recent contact at a building with a person he identifies in a photo as a dealer with a handgun he describes in detail. He offers a general description of the dealer and provides a cell phone number and says he deals heroin and keeps his real name secret in the neighbourhood. He also identifies Dejanna Mignott as his "girl." Source 2 while not offering current information says Arnell Sam carries a firearm, sells a heavy amount of drugs, was in possession of heroin and cocaine and was dealing from a an apartment on Richview Road in Toronto. I note that Dejanna Mignott's previous address was on Richview Road. All of the foregoing is somewhat compelling in terms of detail: there is information that Arnell Sam lives at 35 Warrender #704 and he fairly recently has been observed to be dealing cocaine while in possession at that address of a 9 mm semi-automatic and there is some history of this at a previous address he likely shared with the same woman.

Credibility

[15] The information concerning the two confidential sources is mostly boiler-plate rhetoric about reliability. Source 1 has a criminal record, has provided information the police have acted on before and has not provided false information to his handlers. There is no possibility of determining credibility from this limited information. What is unknown is what is his motivation for providing confidential information and whether he has ever provided information that has led to the arrest and conviction of any individual particularly in respect to guns and drugs. Source 2 is said to have "previously helped to seize 2 firearms". Without more in terms of the date and circumstances of this assistance, the credibility of his source cannot be reasonably assessed as well. While the affiant says the second source adds "even more credibility", the reality of the information provided is such that twice the confidential information of questionable reliability is still a quantity of information of questionable reliability. In terms of credibility, two times zero is still zero.

Corroboration

[16] I have reviewed all of the case authorities helpfully provided by counsel and I have considered whether "the corroborative evidence …will be sufficient] to compensate for the inability to assess the credibility of the source(s)": R. v. Debot, supra. Essentially, in the instant case the police were able to confirm innocuous biographical information – that Dejanna Mignott lives at 34 Warrender Avenue, #704, and that her previous address was 1B Richview Drive, #1904, Toronto. There was a domestic incident involving her and Arnell Sam in the past and upon obtaining photos of Mignott and Sam, Source 1 identified them both. Police checks confirmed Arnell Sam was on a weapons prohibition order. Further, investigators were told that 35 Warrender #704 is where it was described to be in the building at that address by source No. 1.

[17] At first blush, I would have thought that the corroborating information would have had to be corroborative of the commission of a criminal offence taking place at that address.

[18] Wilson J in R. v. Debot, [1989] 2 S.C.R. 1140 at paragraph 53 refers to the recommended evaluation process:

First, was the information predicting the commission of a criminal offence compelling? Second, 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 in investigation prior to making the decision to conduct the search?

[19] On the basis the grammatical rule known as "parallelism" I would have thought that the phrase "predicting the commission of a criminal offence" was an implied modifier of the word "information" before the word "corroborated" in order to maintain parallelism with the first sentence of the paragraph and that the only proper interpretation of Wilson J's seminal formulation is that what is required is the corroboration of some criminality taking place at a particular address. One might ask, in the absence of such an interpretation, where is the protection from "an informer who may be an employee with an axe to grind, an eavesdropper, a thief, a competitor or a mere gossiper who heard it from someone else"? (See William Aikenhead Door and Hardware Ltd. v. Wagscal et al. [1985] O.J. No. 275 (Ont H.C.))

[20] This is the interpretation of corroboration that was adopted in R. v. Henry [2012] O.J. No. 1267 (Ont. S.C.) at paragraph 40: "What required corroboration was not that the applicant was a drug trafficker but that he resided and was selling drugs out of 11 Dunbloor Apartment 907." As a result of this deficiency the I.T.O. in R. v. Henry did not meet the test of reasonable and probable grounds. Similarly in R. v. Herdsman 2012 ONCJ 739, [2012] O.J. No. 5598 (O.C.J.), the Court concluded that the corroboration advanced by the Affiant (at paragraph 62) "never significantly rises above the 'superficial confirmation of innocent facts". The Court, in setting aside the search warrant, referred specifically to several aspects of substantive corroboration that were missing: "There was no confirmation that the applicant is now or has ever been a heroin trafficker", and… "There is no confirmation of the Applicant's involvement with a handgun". Additionally, the Court of Appeal has leaned in this direction in R. v. Lewis (1998), 122 C.C.C. (3d) 481 at 490 (O.C.A.):

Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested anonymous informant cannot, standing alone, provide reasonable grounds for search.

[21] Notwithstanding the fact there is some support in the above references for my initial position as to the need for corroborative evidence of some criminality, I have nevertheless concluded that current jurisprudential authority binding on this court is R. v. Caissey 2008 SCC 65, [2008] 3 S.C.R. 451. The Supreme Court held that "corroboration of some criminal particular of the offence offered as necessary assurance for the issuance of the warrant is not required. The police will rarely be able to confirm the tip of the extent of having observed the commission of the offence and that level of confirmation is not required." (Emphasis added). Additionally, in R. v. MacDonald 2012 ONCA 244, [2012] O.J. No. 1673 (Ont. C.A.) the Court held (at para. 20) that: "At the same time the police were not obliged, before conducting the search, to confirm the very criminality alleged by his tipster: see R. v. Lewis, [1998] O.J. No. 376 (C.A.) at paragraph 22; and R. v. Caissey 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.); aff'd [2008] 3 S.C.R. 451". (Emphasis added). The Court in MacDonald relied on police corroboration of biographical detail as well as the investigative results of a police record search which indicated that the appellant had a conviction for possession of a prohibited firearm, the very criminal activity the tipster alleged ─ in concluding that the justice could have granted the authorization. While no two cases are ever identical, there are sufficient similarities upon which to base an assumption that the Court of Appeal would have come to the same decision in the case at bar.

Conclusion

[22] This is a complex and difficult decision but ultimately I have concluded the justice could have authorized the issuance of a search warrant in this case, even on the basis of the redacted document I have reviewed. What is troubling about this I.T.O. is the level of promotional rhetoric and misleading information it contains ― and the fact police did the absolute bare minimum to corroborate the information provided by the source. For example, one would have thought that there would at least be confirmation by surveillance that the Applicant was living at that address. It may become necessary in the future to adopt a model of a Warrant Application process whereby a senior Special Duty Counsel is given an opportunity to scrutinize a warrant application and make written submissions to the justice before a decision is made. Nevertheless, in this case the source provided information that he or she was recently (to the date of the search) involved in a cocaine transaction at the target address at a location in a building with an individual he/she described (and provided an address, cellphone number and details about his drug-dealing practices) and identified in a police photo and at which address he or she saw a firearm that was described in detail, all of which has to be more compelling than the anonymous crime-stopper tip that the Court considered in R. v. MacDonald, supra. There was also photo identification of a woman with whom the individual lived and information to the effect that he was living with the same woman in 2010 and dealing drugs from an address on Richview Road in Toronto. Police were able to corroborate the biographical detail and using photographs establish the identity of the dealer and his roommate/mother of his children. Additionally, they were able to confirm that Arnell Sam, the person identified by the source as the dealer, was on a weapons prohibition order which gave the "sighting of a firearm" a fair measure of cogency and weight. In all the circumstances, I am satisfied there were reasonable grounds ― that were justifiable from both a subjective and objective point of view ― upon which the justice could have authorized the issuance of the search warrant.

Harris, J.

March 20, 2014