Court File and Parties
Court File No.: NT1392
Ontario Court of Justice (at St. Catharines, Ontario)
Between:
Her Majesty the Queen (Respondent)
- and -
Ljuban Maslek (Applicant)
Counsel:
- Ms. A. Jodouin for the Crown
- Ms. L. Shemesh for Ljuban Maslek
Ruling on an Application
The Application
[1] Mr. Maslek submits that on April 9, 2013 his rights under section 8 of the Charter were infringed. The police executed a search warrant at his home and discovered, inter alia, a kilogram of cocaine in the garage. He argues that the Information To Obtain (ITO) was misleading and deficient; that it did not demonstrate a credibly-based probability that cocaine would be found in his home. Additionally, he submits that the warrant was invalid on its face because it did not contain a start time for the search. He asks that the warrant be quashed and the fruits of the search be excluded under s. 24(2).
The Allegations of Procedural Irregularity
[2] The issuing Justice of the Peace was His Worship R. Bisson. He was assigned to work as an "in-take" justice on April 9, 2013. No digital recording of his in-take work for that day exists. The digital record for Bisson J.P.'s day consists of a female voice opening the recording for the day at 9:00 a.m. Thereafter, and I infer immediately, the recording device was turned off by some unknown person and it was never turned back on that day.
[3] Ms. Shemesh implied that the lack of a recording casts doubt on the propriety of Bassi's attendance upon the issuing justice but I draw no such inference. The evidence of Ms. Renee Laverdiere, a senior manager of the St. Catharines' Provincial Court demonstrates that the lack of a recording of the day's in-take work had no connection to Detective Jason Bassi's attendance on His Worship, as that meeting occurred many hours after the recorder was turned off. Moreover, His Worship was not presiding over a court of record as he considered this ex parte application. The defence did not contend that any statutory or common law authority requires the keeping of a record of the issuance of a search warrant, independent of the ITO and the warrant.
[4] Bassi testified that he submitted the ITO and draft warrant to His Worship and swore to the truth of the ITO before His Worship. Then, rather than leaving the in-take office, Bassi remained there sitting silently while Bisson J.P. first read the ITO and then issued the search warrant that Bassi was seeking. Ms. Shemesh takes several points from these circumstances.
[5] First, she submits that it was highly irregular for Bassi to remain in the presence of the issuing justice. Bassi's evidence was that this practice was not unusual and that he sat silently while Bisson J.P. reviewed the ITO. In my view it is inadvisable to permit an affiant to remain in the presence of a justice reviewing a sworn ITO. At a minimum this practice might subtly pressure the justice to peruse the ITO more quickly than s/he might otherwise do. But, this practice is a matter in the discretion of the Justice of the Peace and Ms. Shemesh provided no authority that spoke to this defence complaint.
[6] Second, Ms. Shemesh submits that the approximately 20 minutes His Worship spent reading and digesting the contents of the ITO was too little time given the complexity and density of its 139 paragraphs set out in slightly over 28 pages. Again, no case was cited in support of the defence contention that this allegedly too short a period of consideration by His Worship could vitiate the search warrant. Indeed, Ms. Shemesh conceded that there was authority to the contrary.
The Allegation of Facial Invalidity of the Warrant
[7] Bisson J.P. failed to insert a search start time in the space left for doing so on the face of the warrant. Bassi had typed an end time for concluding the search of 8:59 p.m. on April 9, 2013, before tendering the draft warrant to Bisson J.P. (That, at least, is what I infer.) As a result of this omission Ms. Shemesh submitted that the police were not entitled to enter the home prior to 8:59 p.m.
[8] In support of this submission Ms. Shemesh relies upon R. v. Adams, [2004] N.J. No. 105 (Prov. Ct.) at paragraph [65] where Gorman J. held that a warrant cannot permit the police to search at "any time" without specifically granting that discretion. The defence submits that no such discretion was sought by Bassi or granted by the issuing justice. In addition the defence relies on R. v. Tooze, [1995] O.J. No. 2947 (Prov. Ct.) and R. v. L.S.U., [1999] B.C.J. No 2305 (B.C.S.C.) for the proposition that the time for searching must be clear and on the face of the warrant. Hence, Ms. Shemesh submits that the only time that the police could lawfully enter under this warrant, if it was otherwise properly issued, would be 8:59 p.m. on April 9, 2013.
[9] I reject this submission primarily because it fails to advert to or deal with Bisson J.P.'s endorsement on the face of the warrant that identified and specified that he had issued this search warrant at 1:49 p.m.; an endorsement that he initialled. Bassi attended upon Bisson J.P. on April 9, 2013 seeking His Worship's authorization to search Maslek's home on that date. The warrant provided, "This is, therefore to authorise any peace officer, at any time between the hours of ____ pm and 8:59 pm on April 9th, 2013 to enter the said place …" In my view the only reasonable inference to be drawn from these facts is that this warrant authorized the police to search Maslek's house at any time on April 9, 2013 between 1:49 p.m. when the warrant was issued and 8:59 p.m. when the authority to search terminated. Consistent with R. v. Adams, supra, this warrant specifically permitted the police to search Maslek's home "at any time" during the permitted period for searching.
Should the Warrant be Quashed?
[10] Ms. Shemesh submits that the warrant ought not to have been issued and ought to be quashed because:
Bassi failed to be full, frank and fair, particularly in relating the surveillance evidence which he exaggerated, embellished, intentionally mischaracterized or misrepresented;
Bassi relied upon bad character and/or propensity evidence and he was inaccurate about that evidence;
Bassi reached conclusions and offered opinions that were groundless and which infected the whole of the warrant;
Bassi failed to provide the full criminal records of the confidential informants (C.I.s), failed to advise whether any of them had outstanding charges and failed to identify their motivation for informing on Maslek; and,
most significantly, the C.I.s were not credible, their information was not compelling and their information was not corroborated.
In brief compass, the warrant failed to contain the requisite grounds required for the issuance of a search warrant.
The Standard
[11] The standard against which the proffered evidence is to be judged is set at "reasonable grounds to believe." That threshold is met when credibly-based probability replaces suspicion.
"… The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. …" Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) at 114–115
[12] The "reasonable grounds to believe" standard defines itself as being less than beyond a reasonable doubt. The phrase denotes a level of certainty that is less than "more likely than not." The degree of certainty required to be achieved in order to rise to the level of "reasonable grounds to believe" was initially described by Martin J.A. and subsequently approved of by Wilson J. in R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) at 213, as one of reasonable probability. According to Wilson J. that standard is "approximated" by the words reasonable belief.
[13] This is the level of certainty that the judicial officer must be satisfied exists before a warrant can issue but, as noted by Scott C. Hutchison at page 47 of Issues in Search and Seizure Law in Canada, 2002 Edition, "[i]t is important to keep in mind that the test is not whether the judicial officer agrees with the particular conclusion or belief – the test is whether the belief of the warrant applicant is reasonable. If it is reasonable, it matters not whether the issuing justice agrees with that belief."
[14] Similarly, the test of whether Maslek's complaint that the ITO was insufficient to provide "reasonable grounds to believe" that there was cocaine in his home is set by R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at 188:
"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 the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge."
The Evidence
[15] There are three strands of evidence that Bassi relied upon in seeking this search warrant. Ms. Jodouin described these strands of evidence as "layers". The first layer was the background of Maslek as known to the police. The second layer of evidence was the information provided by six C.I.s. The third layer of evidence was the police surveillance. As noted at paragraph [10], the defence contends, in effect, that individually and cumulatively, this evidence, as amplified and/or excised on this application, is insufficient to meet the test of reasonable grounds to believe so that this warrant should be quashed. Moreover, Ms. Shemesh urges that this current investigation into Maslek's activities was "sparked" by an allegation that he made a threat against a Niagara Regional Police Service (NRPS) officer. That may well be true but it is beside the point. The only issue before Bisson J.P. was whether the ITO met the test for the issuance of a search warrant. His jurisdiction did not entail a review or vetting of the decision by the police to pursue this particular investigation.
The Background of Ljuban Maslek
Maslek's Prior Criminal Record
[16] Bassi did not copy and exhibit or properly set out Maslek's criminal record. He merely deposed that Maslek had a total of seven prior convictions commencing in 1995, including two counts of breach of recognizance, and one conviction each for assault, mischief under and impaired driving. Bassi did not include the actual dates of conviction, the jurisdiction where they occurred or the penalties imposed. Maslek's last two convictions were imposed in 2007 and are detailed, (so far as Bassi's ITO allows,) subsequently.
[17] Bassi reviewed several prior police contacts with Maslek all of which were described by Bassi as supporting his opinion that Maslek has been trafficking in cocaine for years. Bassi précised several reports that I shall condense further.
August 2006
On August 17, 2006 the NRPS surveilled Maslek as he engaged in short meetings with people at his home and while driving;
On August 18, 2006 Maslek was arrested and found to be in possession of 1.5 grams of cocaine in his pocket, along with $800 and a further 3.5 grams in his car;
A warranted search of his home, which then as now was located at 7948 Spring Blossom Drive in Niagara Falls, Ontario revealed an additional .4 grams of cocaine along with weapons and other indicia of trafficking in cocaine.
July 2007
- As a result of the August 2006 investigations Maslek was convicted in July of 2007 of possession of cocaine for the purpose of trafficking as well as possession of a prohibited or restricted weapon.
February 2010
- On February 6, 2010 two males armed with handguns invaded Maslek's home, forced two of his older relatives to the ground and zip-tied their hands. One invader guarded the two while the other ransacked the upstairs rooms of the house. Maslek was not at home at the time but he told the police that the men had stolen $44,000 (Cdn.) in cash from his bedroom along with $1,000 in other currencies. Maslek said the money was from his employment as a heating and air-conditioning technician and that he only worked for cash.
March 2010
On March 16, 2010 the police executed a search warrant at Maslek's home and seized two packages of cocaine. One package weighed 1,123 grams and the other weighed 1,125 grams. More cocaine was found in a safe and hidden in a child's toy. In addition the police seized 384 grams of cannabis resin, two stun guns and $79,903 in cash.
As a result of these seizures Maslek was charged with a host of offences but during the spring of 2014 he was found not guilty on all counts in a Superior Court trial.
June 2010
- On June 3, 2010 Maslek was attacked by two men in his garage. One male was armed with a handgun. Maslek said he entered his garage from his home and opened the garage door. As he did so two men rushed in and ordered him back into his house. He refused and the second male grabbed a golf club from the garage and hit Maslek with it. The second male hit Maslek in the back of the head with the gun causing a wound which bled. Maslek called to his mother to call the police and the two men fled.
[18] Bassi offered a number of opinions based upon the foregoing incidents and Ms. Shemesh submits that he merely painted a picture of the Applicant as a drug dealer but provided "little if any information to suggest that the Applicant was storing and/or selling drugs from" 7948 Spring Blossom Drive in Niagara Falls, Ontario. It is true, as Ms. Shemesh submits, that these historical incidents paint a picture of Maslek as a drug dealer. However, that picture emerges from the incidents themselves and not merely from Bassi's opinions.
[19] Moreover, while this evidence of bad character is insufficient, by itself, to demonstrate "reasonable grounds for belief" it is available as a component in support of such grounds, as the following excerpts from paragraphs [56] to [58] of R v. Debot, [1989] 2 S.C.R. 1140 explain:
56 The significance of the past record and reputation of the appellant, as well as the background of the other participants, presents a more difficult problem. It is surely beyond question that reputation alone would never provide reasonable grounds for a search. The appellant, however, objects to any use of reputation as a relevant factor. He relies on the United States decision in Spinelli v. United States, 393 U.S. 410 (1969), for the proposition that it offends public policy to use reputation to give additional weight to allegations that would otherwise be insufficient to establish reasonable grounds for a search.
57 I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress an otherwise insubstantial case for searching a suspect. At the same time I find it difficult to accept the proposition that the past activities of a suspect are irrelevant. Indeed, as Martin J.A. points out at pp. 220-21 of his judgment:
- Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on the ground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs its probative value.
58 These policy reasons are obviously not as cogent at the investigatory stage where the liberty of the subject is not directly at stake. Moreover, I think it is somewhat artificial to assume that any one factor, be it reputation or something else, is responsible for turning a previously "insubstantial" case into a sufficient one. Having said that, I add the following caveats to the use of reputation as germane to the issue of a reasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search. A background of driving offences, for example, has little relevance to drug trafficking. Second, if the reputation of the suspect is based on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed. In the present case, it appears that the police relied on both direct experience and hearsay. …
The Confidential Informants
[20] Information from six C.I.s is relied upon by Bassi in his ITO. Debot at paragraph [53] directs that when dealing with C.I.s, at least three concerns need to be addressed in weighing evidence relied on by the police. First, was the information predicting the commission of a criminal offence compelling? Second, was that source credible? Third, was the information corroborated by police investigation? Each of these factors does not form a separate test. Rather, 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] The Applicant submits that the ITO demonstrates a complete absence of reliability and credibility associated with each of the C.I.s and that the police failed to corroborate any of the information that was provided by any of them in a material or significant way. In addition, the Applicant contends their information was generic, the product of rumour or gossip and not compelling.
C.I. #1
[22] C.I. #1 was not a proven and reliable source. He first gave the police information in August of 2011. He knew Maslek's address and that Maslek had been the victim of home invasions and that search warrants had been executed at Maslek's home previously. He knew that Maslek was on release on a recognizance. He said that Maslek was dealing in cocaine and prescription drugs from his home and elsewhere. This C.I. stated that Maslek had both interior and exterior video surveillance of his home and that Maslek's property was the subject of a forfeiture application. In addition, he said that since the execution of the search warrant at his home Maslek had installed a swimming pool. Finally, the C.I. said that Maslek was "connected" (sic) to a man named Ernie who worked at a Kia dealership in Niagara Falls.
[23] In October of 2011 C.I. #1 told the police that Maslek was selling cocaine from his home; that he had recently purchased cocaine from Maslek, that Maslek had frequent visitors to his home, that Maslek deals from his work vehicle and that Maslek does some real air-conditioning work in addition to dealing in drugs.
[24] This C.I. was conceded by Bassi to not having been proven reliable in the past. Further, the ITO fails to indicate why the informant should be considered to be credible, other than by a consideration of the extent to which his information is compelling or corroborated.
[25] As Ms. Shemesh observed, the issuing justice did not know if C.I. #1 had a criminal record or any outstanding charges or what his motivation was for informing on Maslek. The source of his information was not expressly provided. One aspect of it, (that he "recently" relative to October of 2011 purchased cocaine from Maslek) is compelling. However, a substantial proportion of his information was, potentially at least, publicly available. The important point is that the ITO does not identify that C.I.'s source of knowledge, although, in this case, it seems to me that one could infer from the specificity of his knowledge about Maslek and the breadth of his knowledge about Maslek that this C.I. is speaking from personal knowledge. Ms. Shemesh submits that the value of his information is further diminished by his alleged error in saying that Maslek "deals while mobile in a work vehicle" yet the police never observed a work vehicle. To the contrary, Maslek operated a pickup truck and a work vehicle need not carry a sign designating it as such. By his own admission Maslek said he worked only for cash so other informalities in his work are not surprising. While the Applicant asserts one must question the veracity of the information provided by C.I. #1 that assessment is too harsh.
[26] There are several aspects of C.I. #1's information that are known to be true, and a number of others that were corroborated, viz:
C.I. #1 knew Maslek's address;
he knew that Maslek had been a victim of home invasions;
he knew Maslek's home had been searched by the police by warrant more than once;
he knew Maslek was on a judicial interim release order;
he knew that Maslek had surveillance equipment inside his residence – this was corroborated by the police during their search of that home in March of 2011.
In short, the inability of Bisson J.P. to assess C.I. #1's credibility was compensated for by the other two factors - the compelling nature of C.I. #1's information, (that he had personally purchased cocaine from Maslek around October of 2011,) and his specific knowledge about Maslek's circumstances that was corroborated by the police - the search warrants, the home invasions, the surveillance equipment inside his home, the bail order. While this C.I.'s information is compelling and extensive, his information is also dated and stale. In my view Bisson J.P. was entitled to credit this informant despite this information being about two years old and despite the absence of detail of his buy from Maslek.
C.I. #2
[27] Bassi deposed that this C.I. has "been proven and is reliable"; that he provided information which resulted in the execution of prior CDSA warrants and the arrest of seven people; that he has never provided any information which proved to be false and that while he has a criminal record, he has no convictions for public mischief or perjury. Presuming for the moment that Bisson J.P. could accept this informant's bona fides, the information that he provided is generic and not compelling; to wit: as of January of 2012 Maslek was selling cocaine and that he would deliver it to effect a sale.
[28] As Ms. Shemesh has noted there is no way to assess these bald assertions as this informant's source of knowledge is not provided. Additionally, his motivation in informing was not provided. As presented, this informant's information is no better than mere rumour. Moreover, this informant says nothing about the targeted address. In my view this informant's information can add no weight toward a credibly-based probability that Maslek had cocaine at his home for the purpose of trafficking.
C.I. #3
[29] This informant was described as having been "proven reliable." He had previously provided information which resulted in the execution of a CDSA search warrant and the arrest of seven people. He is described as never having provided information that was proved false. Finally, while his criminal record was not provided Bassi deposed that, whatever its extent, it did not contain convictions for public mischief or perjury. Here again Bassi has made what I will term the Rocha error so that his use of the phrase "proven reliable" may be equally suspect.
[30] In February of 2012 this C.I. told police that:
Maslek is selling cocaine to people in the Niagara Falls area including a person called Johnny "Mac" who lives on Beaverdams Road, near Kalar Road;
"Mac" drives a black pickup truck.
[31] Based upon this information the NRPS identified Johnny "Mac" as John McKay of 8522 Beaverdams Road, Niagara Falls, Ontario. McKay was convicted of possession of a controlled substance in 2004.
[32] Bassi deposed that the information from C.I. #3 was corroborated by these police checks. Ms. Shemesh submits otherwise. She observes, as is the case, that this information is vague and not compelling; that the source of this informant's knowledge is unknown, and that McKay's prior record is almost a decade old. Moreover, in light of the absence of disclosure of this informant's record His Worship would have been unable to properly assess this informant's credibility.
[33] Although Bassi said C.I. #3 was "proven reliable" because he provided information that led to arrests, R. v. Rocha, at paragraph [6] appears to suggest that C.I. information ought to lead to convictions, although that result is not a necessary requirement before "proven reliability" is attained. At paragraphs [19] and [20] of Rocha the Court concluded that there was "some" indication of credibility of the C.I. despite no convictions having been garnered as a result of his information. Likewise here, Bassi described C.I. #3 as "proven reliable" and further that the information that he provided did lead to the execution of a CDSA warrant and some arrests. While that may equally be "some" indication of reliability, C.I. #3 also said that Maslek lived on Harvest, when he lived on Spring Blossom. While the surveillance evidence disclosed that Harvest is a neighbouring street to Spring Blossom, it is a different street. Hence, Bassi's statement in the ITO that C.I. #3 has never provided information that was proved false was obviously untrue, (and ought to have been known to be untrue by Bassi when he deposed to that.)
[34] In late March of 2013 C.I. #3 told the police that Maslek was selling cocaine; that he supplies Johnny Mac, that he drives a black truck and resides on Harvest, that Mac lives on Beaverdams on the left side when one travels away from Kalar Road and that Maslek is selling cocaine from his home.
[35] Once again, Ms. Shemesh notes that the source of C.I. #3's information is unknown, as is his criminal record and motivation for informing. Finally, he is wrong about Maslek's address, which effectively negates his allegation that Maslek is selling from his home.
[36] Given these frailties as weighed against the confirmation of some of his information, His Worship could not be faulted for placing some limited weight on this information.
C.I. #4
[37] In late March of 2013 this informant provided the police with the following information:
Maslek is selling large amounts of cocaine;
Maslek is supplied by Mike Kekic;
Kekic is related to Maslek;
Kekic gets his cocaine from out of town, possibly from Hamilton.
[38] This informant's full criminal record was not provided, other than the usual averment that he has no convictions for perjury or public mischief and as a first time informer Bassi conceded he was unproven. However, Bassi researched Michael Kekic and determined that a search warrant was executed at his residence in 2012 and 29 packages of cocaine weighing one ounce in total were seized, together with $2,580 (Cdn.). Bassi apparently did not seek to confirm that Kekic was a relative of Maslek so that aspect of this informant's information was not corroborated.
[39] Ms. Shemesh notes the Rocha defect and the lack of information regarding this informant's source of information. Significantly, this informant says nothing about drugs at Maslek's address or about Maslek dealing them from his home. Despite the Applicant's contrary view, there is some very limited corroboration of C.I. #4's information about Kekic, at least to the extent that an ounce of cocaine in 29 small packages and some cash was seized from his residence; but, none of this C.I.'s information is sourced.
C.I. #5
[40] This informant is conceded by Bassi to be unproven. Bassi described him as being part of the Niagara Falls drug subculture and who provided information without seeking any type of compensation. His information bears some detailing since Bassi alleged that this information was corroborated by subsequent police surveillance. In late February of 2013 C.I. #5 told the police:
About four months earlier 4108 Brookdale Avenue was raided by the police but they came up empty;
Larry Heywood and his son Spencer live at that address;
Both are actively selling cocaine;
They are supplied by a Serbian guy named Lou;
Lou just picked up some [redacted] quantity of cocaine.
[41] Bassi confirmed that Spencer Heywood lived at the Brookdale Avenue address provided by the informant. He further confirmed that in November of 2010 the NRPS executed a search warrant at that address and found no contraband. Finally, Bassi determined that Spencer Heywood is currently charged with possession of cocaine.
[42] The Applicant's position with respect to this information is: that the informant is unproven and therefore incredible; that whether he has a criminal record and, if so, what it consists of is not disclosed. Clearly, this informant is inaccurate. He alleged that the Heywood residence was raided about four months prior to February of 2013 when that warrant was executed in 2010, about two and a half years earlier. The informant's source of information was not provided and this informant said nothing about Maslek's address to suggest that cocaine would be located there. In short C.I. #5 says nothing of significance about Maslek or his address.
C.I. #6
[43] This C.I. provided information to the police in April of 2013. He had a criminal record that was undisclosed but which did not contain any convictions for perjury or public mischief. Bassi described this informant as "proven reliable" since he provided information that led to "the completion of two Controlled Drugs and Search (sic) Act investigations. {A redacted number of} warrants were executed and three people were arrested and charged." C.I. #6 told the police that:
Larry is selling cocaine;
Larry lives on Brookdale and is an older guy;
Larry sells powder cocaine from his house;
Larry's house is on the east side of the street and has a large rock garden;
C.I. #6 has purchased cocaine from Larry numerous times; the last time he purchased was redacted;
The quantity he usually purchases was redacted;
The quality of the cocaine Larry sells is high;
The cost per gram that Larry sells it for was redacted;
Larry gets off a Serbian guy named Lou.
[44] Bassi offered his view this information corroborated the information from C.I. #5 that Larry Heywood was said to be actively engaging in trafficking in cocaine and is supplied by a person named "Lou". Bassi deposed that the surveillance conducted by the police, to be outlined anon, confirms that Lou is the accused, Ljuban Maslek.
[45] Ms. Shemesh submitted once again, that Bassi has committed the Rocha error, which severely limits the ability of an issuing justice to assess a C.I.'s credibility. Moreover, C.I. #6 is an admitted drug user. Once again, Bassi's ITO has failed to identify the source of this informant's knowledge. She disputes that the police surveillance evidence corroborates this informant's information and Bassi's contention that Lou is the accused. Finally, and once again, Ms. Shemesh points out that C.I. #6 says nothing about the Spring Blossom Drive address that was the subject of the warrant at issue in this application.
The Surveillance Evidence
[46] The police surveilled Maslek over several days in 2012 and 2013. A review of that evidence and the submissions of Ms. Shemesh with respect to it will follow. In his ITO Bassi opined that the observations of the police indicated that Maslek was engaged in drug trafficking.
November 22, 2012
[47] The police began to watch Maslek's home at 9:00 a.m. on this date. Bassi stated that at 10:57 a.m. "a small beige car arrived at the residence went to the front porch of the residence and then left at 11:04 AM." He opined that in his experience short visits to a residence are indicative of trafficking in controlled substances. That may well be the case but without more detail a seven-minute visit by some unknown person is not necessarily indicative of anything. The content of the ITO makes it evident that several people of varying ages live in Maslek's home. Who this unknown visitor was and who he or she was visiting and for what purpose cannot be known from this police observation.
[48] At 11:21 a.m. Maslek left his home at what Bassi described as a high rate of speed. No further description of what he meant to convey by that description was provided. It is a valueless bald allegation, in my view. At some undetermined time thereafter Maslek is located by the police at some undetermined location but wherever and whenever that was, he now had an unidentified female passenger. Maslek then returned to his home at an unidentified time and presumably went in for two minutes before exiting and talking to an unknown male who was someplace nearby. At that point Maslek got back in his vehicle and left.
[49] Bassi then opined that "a meet of this nature is common when trafficking in a controlled substance. A person will make a meet very short in an effort to avoid police detection." Once again, that opinion may be accurate but it does not have any application to the incidents described. There was no suggestion of any hand-to-hand exchange and no detail provided that would allow this incident to be indicative of anything. The identity of this other male is unknown and, with respect, the whole scenario described is essentially opaque to anything other than speculation.
[50] After leaving this "meeting" (sic) Maslek dropped his female passenger off at a shopping mall. The surveillance officer said that Maslek's window was down and Maslek was seen to "count a large sum of money." Bassi was attempting to imply that Maslek was counting the proceeds of some drug transaction but, with respect, no drug transaction was observed. Bassi's implication is pure speculation and no more probable given the observed incidents than the thought that Maslek had just given a sum of money to the female to shop with and was arranging his remaining funds.
November 23, 2012
[51] On November 23, 2012, surveillance commenced at Maslek's home at 8:00 a.m. Maslek left his home at some unidentified point in the morning and the police lost sight of him several times due to "the high rate of speed [he] operates his vehicle." That is the totality of the surveillance evidence for November 23, 2012.
[52] Despite no particulars being provided, either by way of the posted speed in the area Maslek was driving, the estimated speeds at which he was driving, or the route that he took, Bassi opined that Maslek drove as he did to frustrate being surveilled by the police. Once again, without supporting details, Bassi's opinion that "persons involved in criminal activity operate their vehicles … in an effort to expose police presence or to lose police engaged in surveillance" may well be true but unless the surveillance is presented in sufficient detail to ground this opinion, the opinion has no forensic value.
The Threatening Investigation
[53] Bassi averred that Maslek was being investigated by the NRPS for having made threats of some sort against an NRPS officer. The nature of the threat and the circumstances under which it was said to have been made were not disclosed. As a result of that investigation, Maslek was being surveilled in March of 2013. That surveillance of him was described by Bassi as follows.
March 26, 2013
[54] Maslek was located at some undisclosed time during this date in Thorold, Ontario. He travelled from Thorold to Welland, Ontario and went to the office of Mark Evans. Maslek left Mr. Evans' office and went to a flower shop where one or more police officers spoke to him about the threats he was alleged to have made. No details of that interview were provided in the ITO. Maslek then returned to Mr. Evans' office. No times or other details of these events were provided, however, he was then followed from Mr. Evans' office apparently arriving home at 12:54 p.m.
[55] At 1:21 p.m. a male drove to Maslek's home in a white Chevrolet sedan. The man was about six feet tall and between 35 to 40 years old, according to the estimates made by the police watch-team. Maslek spoke to this man while they stood together in the garage. The time they spent together was not identified. Maslek walked the man back to his car where they chatted further and then the man drove off. The police subsequently determined that the owner of the car was a Sandra Pusey and the man was probably Luke Brody. No further details of either Pusey or Brody or the relationship of either of them to Maslek were provided by Bassi in the ITO.
[56] At some later point that afternoon Maslek drove to Westlane Secondary School and then to Kia Motors. I pause here to note that Maslek has at least one teen-age son and he was likely picking up his son from school. However, Bassi did not make that point in the ITO.
[57] Bassi then went on to stress that Maslek's attendance at a Kia Motors dealership was significant to him because he was aware of a man named Ernie Gonzalez who worked at this dealership. Bassi deposed that Gonzalez was "associated to Maslek and the drug culture in the Niagara Region." I infer that Bassi was referring back to the information provided by C.I. #1 who told the police, inter alia, that Maslek was connected to Ernie of Kia in Niagara Falls. What the ITO does not speak to is: how long Maslek stayed at the Kia dealership, whether he went inside it and if so where; what he did there, who he spoke to or interacted with, whether Ernie Gonzalez was working that day, whether the two had any contact, etc., etc., etc.
March 27, 2013
[58] The police began to watch Maslek's home at 9:00 a.m. According to Bassi's ITO, "two vehicles were observed attending the residence. The visits lasted between twenty four minutes and twenty five minutes." Maslek then left his home at 12:29 p.m. and "was observed attending 8522 Beaverdams Road and entering the residence. Maslek left the residence after an eight minute visit."
[59] Bassi noted that this surveillance corroborated the information provided by C.I. #3 who advised the police that Maslek supplies cocaine to Johnny Mac, who lives at 8522 Beaverdams Road.
[60] The police continued to watch Maslek. He stopped at some local businesses and then picked up an unidentified male in a parking lot on St. Paul Street in St. Catharines and gave him a ride to 8072 Pinellas Park. Maslek then attended Westlane Secondary School and picked up an "unknown" (sic) male and returned home at 3:02 p.m.
[61] At this point Bassi's ITO relates a scenario that is easier to quote than précis:
"…police observed a Chrysler Intrepid parked on Spring Blossom. Maslek is observed engaging an unknown male in a white van that is also parked on Spring Blossom. The conversation last several minutes as the unidentified male in the Chrysler remains in his vehicle. At 3:14 p.m. Maslek leaves completes the conversation with the person in the van, at this time the unknown male exited the parked Chrysler and walks into the garage of the residence with Maslek. The unknown male leaves the residence and departs at 3:19 p.m. The vehicle BPTS546 is registered to Julio Addario from 92 St. Lawrence Drive in Welland. A check of Addario did not show any criminal history."
[62] The surveillance continues and at 3:23 p.m. a grey Nissan, BPRY990, pulled into the driveway at Maslek's home. The vehicle leaves after a four-minute visit. The registered owner of that car was Lawrence Heywood of 4108 Brookdale Drive. Bassi went on to note the obvious significance of that observation, namely that C.I. #5 informed the police that Larry Heywood and his son Spencer were supplied cocaine by a person named "Lou". In addition, Bassi also offered his opinion, based upon his experience that was outlined at length earlier in the ITO, that this sort of short visit is indicative of trafficking. Subsequently, at 4:10 p.m. on this date a black pickup truck with a dealer plate, which the watchers did not obtain, attended Maslek's home for a visit that only lasted one minute.
[63] Another of the police watchers, P.C. Santo, made his own observations and received other police surveillance reporting on Maslek for March 27, 2013. Santo's policing experience was not reviewed. Nonetheless Bassi summarized Santo's opinions as follows:
people seeking drugs will attend upon their supplier;
these drug seeking visits are usually of short duration, lasting only long enough to complete a transaction;
Santo also opined that when a dealer supplying drugs makes a drop to his customers those visits are similarly of short duration;
It was Santo's experience that the type of short visits of the sort recorded at Maslek's home on March 27, 2013 resulted in, inter alia, the seizure of drugs and money when search warrants were executed at places where that kind of activity had been observed by him.
April 1, 2013
[64] The police surveilled Maslek's home on April 1, 2013, commencing at a time that Bassi did not note. Maslek left at 2:48 p.m., presumably driving away in a fashion that was not noteworthy. At 3:10 p.m. a black pickup truck bearing a dealer plate pulled into Maslek's driveway. The driver remained in his vehicle and at 3:12 p.m. Maslek returned to his home. At that point the driver got out and the two went into the house. At 3:14 p.m. that driver left as did Maslek, who attended a car dealership and then returned home at 3:59 p.m. Bassi's ITO contains no further information about this incident. The dealership is not identified and where Maslek went in that dealership and what he did or even appeared to be doing are not described.
[65] According to Bassi's ITO, "at 4:00 p.m. Maslek began driving around his neighborhood checking vehicles for occupants." Bassi opined that when a person behaves that way it is in an effort to do counter-surveillance and is indicative of criminal activity. I agree that is a likely interpretation; but, Bassi's ITO is devoid of any detail of what it was that the watchers saw that caused Bassi to conclude Maslek was conducting counter-surveillance. Bassi's opinion was a conclusion. The factual basis for that conclusion was not provided.
April 2, 2013 at the Heywood's
[66] On this date an NRPS officer surveilled Larry and Spencer Heywood's home at 4108 Brookdale Avenue commencing at 2:05 p.m. That officer noted three short visits by people to their home. The details of those visits were not deposed to.
April 3, 2013 at the Heywood's
[67] On this date an NRPS officer surveilled the Heywood residence from 3:04 p.m. to 3:11 p.m. before having to leave the area. During the brief period that this officer was watching 4108 Brookdale Avenue he observed one short visit to that residence. These four short visits are indicative of drug trafficking and therefore corroborative of C.I. #5's information, in Bassi's opinion.
April 3, 2013
[68] On this date the watchers surveilled Maslek's residence commencing at 9:45 a.m. Maslek left his home that morning at a time not provided by Bassi. Maslek was followed to a convenience store and then to a Tim Hortons where he met with a male older than himself. He met with that man until 12:49 p.m. but given the lack of a start time I do not know how long they had coffee together. Thereafter Maslek apparently returned home because the next reported sighting of him has him leaving his residence with a neighbour. The two men go to Chip N Charlies. I presume that is a fish and chip restaurant. They arrive at 1:14 p.m. and leave at 1:51 p.m. and return to their respective homes.
[69] At 3:39 p.m. an unidentified male wearing a lime green jacket drives an Acura with plate number BLDL698 up to Maslek's home. He goes into Maslek's house for a brief visit and then leaves after two minutes, at 3:41 p.m.
[70] At 4:34 p.m. a black "four door vehicle" drives up to Maslek's home as Maslek is coming out of his garage. The driver of this vehicle is unidentified and the watchers don't get the plate number. Maslek gets into the vehicle and remains there for less than a minute before the car drives off without him. Maslek then drives to pick up his son at Westlane Secondary School and the two go to a Tim Horton's before returning home. Surveillance on this date is terminated at 5:00 p.m.
[71] Bassi opined that these brief meetings at 3:39 p.m. and 4:34 p.m. were indicative of drug trafficking and that the surveillance of Maslek over these several days demonstrated that Maslek "does not attend a work location on a regular basis."
April 4, 2013
[72] On this date surveillance of Maslek's home began at 11:39 a.m. Maslek left at 11:51 a.m. to go to a Home Depot store. From there he went to 7866 Salisbury Place, then back to Home Depot, back to 7866 Salisbury and then back to his own home at 1:58 p.m. Bassi did not attempt to interpret these trips but the probable interpretation is that he was doing work at that residence and had to get a part or materials from Home Depot.
[73] At 2:02 p.m. an unknown male attended Maslek's home. He left at 2:33 p.m. This clearly is not one of these short meetings that Bassi believes is indicative of drug trafficking. At 2:43 p.m. Maslek goes to Westlane, presumably to pick up his son, and then stops in at a Dollarama store before returning home at 2:59 p.m.
[74] At 4:00 p.m. Lawrence Heywood was seen driving a grey vehicle with Ontario plate number BPAM774. Heywood was observed attending Maslek's residence. Heywood left at 4:04 p.m. after a three-minute visit. The watch team followed Heywood back to his own home at 4108 Brookdale. Bassi noted that this was the second short visit by Heywood to Maslek's home. Bassi described this visit as further corroboration of the information C.I. #5 provided; viz that one of the Heywoods is supplied cocaine by a Serbian guy named Lou. Equally, C.I. #6 provided quite similar information about Larry Heywood. Hence, these observations of Heywood corroborate this informant's information, too.
April 8, 2013
[75] On this date the police began their surveillance of Maslek's home at 1:50 p.m. He was away from his home at that time and the watchers saw him return at 2:08 p.m. Maslek was followed into his driveway by a blue Dodge being driven by an unidentified male. Maslek and this male went into the garage. The unidentified male left at 2:15 p.m., six minutes after going in.
[76] The next observations of the surveillance team, as described by Bassi in his ITO, are contentious and so I propose to simply quote the paragraph at issue. In due course I shall review the Applicant's submission with respect to this paragraph.
At 2:24 p.m. a grey Hyundai bearing Ontario marker BPAM774 was observed arriving at Maslek's residence. The driver of the vehicle was described as a white male between forty and forty-five years. The unknown male departed the residence at 2:28 p.m. after only a four minute visit. The driver was identified as Lawrence Heywood. Heywood returned back to his residence. No further observations of note were observed at Maslek's residence.
[77] At 3:00 p.m. the police conducted surveillance of Lawrence Heywood's residence at 4108 Brookdale Avenue. Detective Maniaci observed a gold pickup truck arrive at 4108 Brookdale and stay for only six minutes before leaving. Next, at 3:38 p.m. a brown van attended for a two-minute visit. Then, at 3:56 p.m. a red minivan attended after a 13-minute visit. At 4:36 p.m. a brown four-door Sunfire attended and then departed at 4:42 p.m. Finally, a red Dodge vehicle attended at 4:48 p.m. and was still there at 5:20 p.m. when surveillance was terminated.
[78] Bassi interpreted the foregoing surveillance as demonstrating that Lawrence Heywood was supplied with cocaine by Maslek, on what one could infer amounts to a wholesale basis, and then he immediately resold it to numerous users on a retail basis. Bassi opined that this was further corroboration of the information provided by C.I. #5 (and C.I. #6, too.)
[79] In short, Bassi concluded that the information received from three proven confidential informants and from three unproven confidential informants was corroborated by police surveillance. He concluded that Ljuban "Lou" Maslek is currently trafficking in cocaine in substantial quantities from his residence at 7948 Spring Blossom Drive in Niagara Falls, Ontario.
The Applicant's Submissions Respecting the Surveillance Evidence
[80] It is the Applicant's submission that the surveillance in 2013 was sparked by an alleged threat that Maslek was said to have made against a serving NRPS officer. As a result, the Applicant submits that the surveillance relied upon by Bassi was in aid of that investigation. With respect, even if that was true, the submission is of no moment if the surveillance demonstrates the drug distribution relationships that the confidential informants disclosed to the police.
[81] The Applicant makes a further point that who Ernie Gonzalez is, what his history, criminal record and background are were not delineated. His relationship to Maslek is equally opaque. In short and in effect, Bassi's comments with respect to Gonzalez and Maslek were a waste of ink. I agree. These averments can make no weight on the issue of reasonable grounds to believe.
[82] Ms. Shemesh saved some of her most trenchant comments for those aspects of the surveillance evidence that are said to demonstrate a relationship between Maslek and the Heywoods or Johnny Mac. She noted that paragraph [81] of the ITO stated: "Maslek was observed leaving [his] residence at 12:29 p.m. Maslek was observed attending 8522 Beaverdams Road and entering the residence. Maslek left the residence after an eight minute visit." In fact, the surveillance report that Bassi based this statement on said: "[Maslek] attends 8522 Beaverdams Road and parks near the roadway. [He] is observed walking up the driveway towards the residence. [He] is wearing black jacket and has shaved bald head. At approximately 12:39 hours [Maslek] is observed walking towards [his vehicle] and get onboard and is away eastbound on Beaverdams."
[83] Ms. Shemesh stresses that there is no indication that Maslek "entered the residence" as suggested by Bassi. In addition there is no surveillance evidence to identify who Maslek met. All of that is true but while it would have been better and certainly more exact and accurate for Bassi to quote the surveillance notes exactly, his version is neither unreasonable nor contrary to the inferences that anyone would reasonably draw from the incidents observed as quoted exactly. In my view there is nothing to excise here. Alternatively, if Bassi's version is excised and the exact surveillance quotes are used by way of amplification, the same result is achieved; viz Maslek went to Johnny Mac's house. The surveillance effectively confirms a relationship between Maslek and Johnny Mac.
[84] The Applicant submits that much of the events detailed in the surveillance of March 27, 2013 are obviously unconnected to drug trafficking so that no inferences to support that thesis are available from them. In addition, Bassi failed to supply the results of plate or other police searches that were available to him, so that many of the sightings of people or vehicles were actually not unidentified, (at least so far as the registered owners of those vehicles are concerned.) In the result the Applicant submits that the opinion of Officer Santo, set out above at paragraph [63] that this day's surveillance supports an inference of drug trafficking by Maslek is valueless. In my view Santo's opinion adds very little, if anything, to the one offered by Bassi, especially given that Bassi provided his training and experience in some detail.
[85] Ms. Shemesh unpacks the dealer plate incident of April 1, 2013 set out at paragraphs [64] and [65] above. Her review of those incidents is as follows:
"[30] At paragraph 94, the affiant deposed that Maslek was seen leaving his home at 2:48 p.m. This is incorrect. He was seen leaving at 2:28 (see the notes of Officer Kicks) and he was followed to Magnolia Drive. At 3:10 p.m. a black older model pickup truck pulls into the driveway with dealer plates and the driver does not get out. At 3:12 Mr. Maslek is seen returning to the address and the two get out of their cars and both enter the home through the front door. They both exit two minutes later and the dealer plate car follows the Applicant. They attend a Chevrolet Oldsmobile dealership. Upon returning to the target address, the Applicant makes eye contact with Officer Hicks and likely wonders why she is situated seated in the car out front his house. He peers inside to see who she is. This is not so uncommon."
[86] More significantly, Ms. Shemesh notes that Bassi's averments that between 2:05 p.m. and 3:44 p.m. Detective McCready observed three short visits to the Heywood residence at 4108 Brookdale Avenue are merely bald statements without any detail of what it was that officer observed. In the result the Applicant submits that the issuing justice had no basis for assessing these allegations. I agree with that submission to an extent but note that on several prior occasions that description was applied to visits of a few minutes duration. While it would have been better and certainly more complete for Bassi to have outlined the details of McCready's observations, what McCready observed as related by Bassi was useable information that Bisson J.P. would weigh as he thought fit.
[87] The Applicant submitted that the police were aware of the identities of the persons associated with the vehicles that attended the Heywood residence at 4108 Brookdale Avenue. The ITO does not contain that information, which I infer was part of the disclosure made to the Applicant. Ms. Shemesh did not include that information in the binder of Supplemental Materials that she filed on this application. She noted, at paragraph [32] of her written submissions, that "none of the police officers ran the plates in question to determine who these persons were and/or their association to the address and/or to the Applicant. She went on to submit that the ITO does not indicate why these visits are only indicative of trafficking in controlled substances.
[88] With respect to this last submission, I'm of the view that it would be clear to His Worship, as it is to me, why the police drew that conclusion - because of the prior information contained in the ITO, including Maslek's prior history, the prior information about Lawrence and Spencer Heywood and because in the experience of Bassi and Santo short visits are indicative of drug trafficking.
[89] Ms. Shemesh also took issue with Bassi's conclusion that the surveillance demonstrated that Maslek did not attend a work location. I have adverted to this previously but by Maslek's own admission he works for cash and does air-conditioning work. While it might be that by unfortunate coincidence the police chose to watch him when he was merely on a stay-vacation, Bassi's interpretation is certainly an available inference.
[90] In oral argument Ms. Shemesh augmented her written submissions. She pointed to what would seem to be a major misstatement of the surveillance evidence by Bassi on a significant point. At paragraphs [85] and [86] of the ITO, referred to above at paragraphs [76] and [77] of these reasons, Bassi ties Maslek to Larry Heywood, thereby corroborating C.I. #5 (and C.I. #6.) Ms. Shemesh disagrees that Lawrence Heywood was identified at Maslek's residence since the surveillance report available to Bassi was written in these terms:
"16:02: Grey car leaving away on Harvest
16:02: male that resembles Larry Heywood into driver side (emphasis added)
16:07: car followed to 4108 Brookdale driver looks like description of CPIC for Heywood into house"
While it would have been better for Bassi to put the original observations into his ITO without drawing the obvious conclusion, I'm satisfied that had he done so and then said that the person seen at Maslek's must have been Lawrence Heywood is the conclusion anyone would reasonably draw, given that the man looked like Heywood, matched Heywood's description on CPIC and then drove to and entered Heywood's home. So, even if the impugned passage was excised and then amplified by the original surveillance notes the result remains the same.
[91] Ms. Shemesh submitted that the information from the six C.I.s was not credible, not compelling and not corroborated. Rather, it was vague, incredible and uncorroborated. Moreover, some of it from 2010 was too stale-dated to be relied upon for any purposes. Moreover, Ms. Shemesh objects to Maslek being described as a "kilogram-level cocaine dealer" since he was acquitted in the Superior Court earlier this year for the allegation of possessing two kilograms of cocaine and about $80,000 of currency. I disagree. While he may have been acquitted at trial, that description was apt when this ITO was sworn.
[92] Further and most significantly, Ms. Shemesh contends that
"there is nothing to substantiate the opinion of Officer Bassi that there is an "ongoing drug trafficking operation at 7948 Spring Blossom Drive." There is also no information to suggest that cocaine was being stored at 7948 Spring Blossom Drive. No one indicated as such, and there is no information to suggest that is true. In fact, it is completely in error to suggest at paragraph 133 that "Confidential Informants have provided information that Maslek is operating a cocaine trafficking operation from the address of 7948 Spring Blossom Drive in Niagara Falls." This is not true at all and is a complete exaggeration. Confidential Informant #1 is the only informant who refers to the address in question and he/she does not indicate how they know the address and or, what they know about the address and or, that they have been to that address. The remaining confidential informants say nothing of the address. In fact, Confidential Informant #3 refers to an entirely different address on Harvest Drive."
[93] On the contrary, the conclusion that Maslek was involved in an ongoing drug trafficking operation at 7948 Spring Blossom Drive is reachable on the cumulative weight of the information contained in the ITO. By itself, as noted above at paragraph [19], prior character or disposition evidence is insufficient but not irrelevant to that conclusion. Nonetheless, that portion of the evidence was compelling. Two kilograms of cocaine and about $80,000 were seized from his house. His home had been the subject of two violent and very serious home invasions. In the first incident Maslek admitted that $44,000 in cash was stolen. Maslek had a prior record for trafficking in cocaine, which had been found on his person and in his home. With respect, that Maslek was a cocaine dealer who stored cocaine at his home was an available inference from this evidence. The issue, of course, is whether at the time this warrant was issued that inference was available.
[94] By itself, the weak C.I. evidence was insufficient for that finding; but, as Debot notes, weaknesses in some areas may be buttressed by strength in others. The strength required in this case must come, if at all, from the surveillance evidence. The issue is simply whether that evidence is sufficiently corroborative of the C.I. information to permit a judicial officer to conclude that there were reasonable grounds to believe that cocaine would be found in Maslek's home.
The Effect of Rocha, Lewis and The Surveillance Evidence
[95] Ms. Shemesh stressed that Rocha has clarified what a deponent should do about disclosing a C.I.'s criminal record when drafting an ITO. At paragraph [28] of R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 (SCO) Mr. Justice Code describes the failure of a deponent to provide the complete criminal record of a C.I. as "unreasonable". Rocha was released on October 24, 2012, not quite half a year before this warrant was applied for. In R. v. Prosser, 2014 ONSC 2645, [2014] O.J. No 2543 (SCO) Madam Justice Wilson noted, at paragraph [93] that prior to Rocha
"it was not a prerequisite to disclose the criminal record in the ITO as now appears to be the case as clarified in the R. v. Rocha decision. Prior to R. v. Rocha the police were concerned that details in a criminal record could be used to identify the accused, contrary to the principles respecting informer confidentiality for their protection, and simply did not disclose the criminal record to the issuing justice. What appears now to be the law, post-Rocha, is that the criminal record if any must be shown to the issuing justice, to aid him or her in assessing the credibility of a confidential informant. This does not mean that the criminal record will be disclosed to defence counsel, as providing details of the record would have a dangerous effect of narrowing the pool."
[96] What Bassi ought to have done was disclose the complete criminal records of all C.I.s referred to. It may well be that the easiest way to deal with those records would be to attach them as confidential appendices to the ITO. I agree with Ms. Shemesh that the failure of Bassi to provide the complete criminal records of the C.I.s means that there was no reasonable basis upon which Bisson J.P. could assess their credibility. That deficit was compounded by Bassi's failure to advise the issuing justice of the motivation for each of the C.I.s to cooperate with the police and inform on Maslek.
[97] Next, Ms. Shemesh accurately characterized the evidence of many of the C.I.s as being vague and non-compelling. The Applicant submits all the C.I.s are vague and non-compelling. I disagree. C.I. #1 said that he had bought cocaine personally from Maslek sometime before speaking to the police in October of 2011 and C.I. #6 said that he had personally obtained cocaine from Larry Heywood on many occasions. In my view that is compelling information. However, so far as the others are concerned the source of their information was simply not provided. Nonetheless, while C.I. #1's information had the compelling aspect of personal knowledge both of buying from Maslek and likely having some acquaintanceship with him or at least likely having been in his home, (see paragraph [23] above,) his evidence was getting stale-dated by April of 2013.
[98] In my view the only way that this warrant can be upheld is if it can be found that the police have sufficiently corroborated the evidence of the C.I.s to compensate for their lack of assessable credibility. In that regard Ms. Shemesh referred to the comments of Scott C. Hutchison on the role of corroboration in the assessment of the information provided by a C.I.:
The best way for an officer to bolster the value of tipster/confidential informer is to find other material, either in the existing file or from further investigation that corroborates material elements of what the informer has told the police. This is the one aspect of the informer's evidence that the officer has any control over – the officer cannot make the source more credible or make the information more compelling, but investigation can confirm what the source has said.
There must be something more than confirmation of innocent facts which might be readily known. This is not to say there must be confirmation of other directly inculpatory evidence, but it does mean that something more than superficial confirmation is needed.
[99] Ms. Shemesh also referred to R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.) in support of the same proposition. There McMurtry C.J.O. and Rosenberg J.A. concurred with Mr. Justice Doherty who explained the purposes and effect of police investigation in the corroboration of a tip in the following paragraphs:
15 In determining whether information provided by a tipster constitutes reasonable grounds for an arrest or a warrantless search, the "totality of the circumstances" must be considered …
16 The totality of the circumstances encompasses factors which are relevant either to the accuracy of the specific information supplied by the tipster or the reliability of the tipster as a source of information for the police. Where, as here, the tip is provided by an unknown first-time tipster who has not revealed how she came to know about the alleged criminal activity, the value of the tipster's information depends on the nature of that information and the extent to which the police are able to confirm that information before the arrest or search. (emphasis added)
17 This tipster provided detailed information identifying the alleged perpetrator, the place and time of the alleged crime, and the particular means by which the crime would be committed. That detail tended to exclude the possibility that the tipster was merely relating rumour or gossip. Prior to the search of the respondent, the police confirmed many of the details provided by the tipster. …
19 … 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 an arrest or search. (emphasis added)
[100] Ms. Shemesh submits that, just as in Lewis, the facts disclosed by the surveillance conducted in aid of corroborating the C.I.s never rise in any significant way above the superficial confirmation of innocent facts; i.e., the location of addresses and the physical description of the Applicant. Ms. Shemesh contends that there is no substantive corroboration of the information provided by the C.I.s and none of it, (other than the purchase aspects of C.I. #1 or C.I. #6,) has been sourced.
[101] Specifically, the Applicant notes that the surveillance fails to demonstrate any hand-to-hand transactions or even the existence of packages displayed or conveyed. Further, the Applicant submits that there is a dearth of evidence to demonstrate that Maslek was ever seen with Lawrence or Spencer Heywood or Johnny Mac, individuals identified as being drug traffickers by the C.I.s.
The ITO and 7948 Spring Blossom Drive
[102] The Applicant submits that there is no recent, compelling or corroborated evidence in the whole of the ITO that establishes that drugs would be located at 7948 Spring Blossom Drive, in Niagara Falls, Ontario. Ms. Shemesh goes on to contend that there is no information proffered that establishes that 7948 Spring Blossom Drive, in Niagara Falls, Ontario is the Applicant's home. This latter submission is easily rejected based on the historical evidence and the surveillance evidence but her submission that "reasonable and probable grounds established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search constitutes the minimum standard for authorizing a search and seizure" is a correct statement of the law.
The Evidence Assayed and The Issue Determined
[103] In my view, the historical evidence demonstrates that it was reasonable to believe that Maslek was a major drug dealer in 2010, despite his subsequent acquittal in the spring of 2014 on charges arising out of the search for drugs and the seizure of more than two kilograms of cocaine from his home in March of 2010. That seizure from 7948 Spring Blossom Drive in Niagara Falls, Ontario in 2010, along with the two home invasions of his residence, on February 6, 2010 and on June 3, 2010, demonstrate that large amounts of cocaine were actually stored at that address together with large amounts of criminal proceeds. His loss of $44,000 from the February 6, 2010 home invasion and the subsequent home invasion of June of 2010 allow the reasonable inference that he was known to be a drug dealer who kept large sums of money and drugs at his residence. His earlier conviction in July of 2007 for possession of cocaine for the purpose of trafficking, which arose out of a seizure made from his person and from his home in August of 2006 reinforce that conclusion.
[104] In 2012 and 2013 the NRPS received what, for the most part amount to rumours, from multiple C.I.s that Maslek was continuing to be active in dealing cocaine. I characterize the information of C.I. #2, #3, #4 and #5 as rumour because the source of their information is never provided and none of it is compelling given the ostensible lack of personal knowledge. So far as C.I. #1 and #6 are concerned, as I have noted previously, these C.I.s told the police they purchased cocaine directly from Maslek and Larry Heywood, respectively. That information is therefore sourced and compelling. Moreover, C.I. #1 offered a wealth of information about Maslek and one could reasonably infer that he had been in Maslek's home. Likewise, C.I. #6 having purchased cocaine from Larry Heywood on numerous occasions can be relied upon to know about Heywood's drug dealing activities, as a consequence.
[105] Given Maslek's past history, as known to the NRPS, it was reasonable for the NRPS to suspect that Maslek had been storing cocaine at his home at 7948 Spring Blossom Drive and that he had been dealing out of his home. However, by themselves, these two layers of information – past history and C.I. rumours – could not elevate the belief of the NRPS in 2013 beyond suspicion without corroboration of the rumoured information given to them by the C.I.s during that year.
[106] For ease of reference I shall chart the surveillance evidence that bears on the issue:
| Date | Times (all p.m. unless noted) | Observations | Commentary |
|---|---|---|---|
| Mar. 26/13 | 1:21 | A male speaks to Maslek in his garage and then leaves | This encounter is equivocal at worst and does not assist the Crown. |
| Mar. 26/13 | afternoon | Maslek goes to Kia dealership | See [55] and [56] above. This attendance does not assist the Crown. |
| Mar. 27/13 | 9:00 a.m. | Police start surveillance of Spring Blossom – two visitors arrive during the a.m. for visits that last about half an hour each. | Who these visitors are and who they are visiting is unknown. In any case these are not the kind of short visits that either Bassi or Santo describe as indicating drug trafficking meetings – see [49] and [61] and [62] above. |
| Mar. 27/13 | 12:29 | Maslek goes to 8522 Beaverdams Road for an eight-minute visit. | This attendance corroborates C.I. #3's information discussed at [29] to [34] above. This meeting confirms a relationship of some degree between Maslek and Johnny Mac. |
| Mar. 27/13 | 12:37 to 3:02 | Maslek shops and picks up his son at high school. | None of these events assist the Crown. |
| Mar. 27/13 | 3:02 to shortly after 3:14 | Two men are waiting for Maslek on Spring Blossom when he returns home at 3:02. The man in a car waits while Maslek talks to a man seated in a van. At 3:14 that chat ends and the man in the car talks to Maslek in his garage until 3:19 and then leaves. | These meetings might be considered suspicious except that nothing gets passed in any hand-to-hand exchange and the garage door is apparently open while Maslek talks to the man who waited and, again, nothing untoward is noted. Moreover, the waiting man who talked to Maslek in the garage was identified and had no criminal history. These short meetings do not assist the Crown. |
| Mar. 27/13 | 3:23 to 3:27 | Someone driving Lawrence Heywood's car makes a short, four minute visit to Maslek's home. | This attendance corroborates and confirms the evidence of C.I. # 5 at [40] and [41] above, that the Heywood's have a relationship with and are supplied their cocaine by a Serbian guy named Lou. Further is the type of short visit that is indicative of a drug transaction, in Bassi's opinion. |
| Apr. 1/13 | 2:48 At 3:10 a p/u truck with a dealer plate arrives At 3:12 At 3:14 At 3:59 At 4:00 | Maslek drives away; he returns at 3:12 and the p/u truck driver and Maslek go into the house. Both leave in separate vehicle and return to the dealership. (see [63] Maslek returns home. Maslek is said to check vehicles around his home. | Given the absence of details and the absence of the identity of the pickup truck driver or the dealership all of this is too opaque to draw any conclusions in favour of the Crown; likewise, the allegation of counter-surveillance car checking is merely a conclusory statement unsupported by detailed evidence from which the validity of the conclusion can be assessed. (see [64]) |
| Apr. 2/13 | 2:05 | NRPS surveills 4108 Brookdale, (the Heywood residence) and three short visits are noted. | Short visits to the home of cocaine dealers indicated they are dealing. The particulars of the visits are not provided in the ITO, which could detract from the weight to be ascribed to these observations by the issuing justice. |
| Apr. 3/13 | 3:04 to 3:11 | NRPS surveills 4108 Brookdale and see one short visit before watcher has to leave. | This is the fourth short visit to the Heywood residence seen on the 2nd and 3rd of April. Bassi notes that these visits corroborate C.I. #5 and, in my view, C.I. #6 as well. |
| Apr. 3/13 | 9:45 a.m. surveillance starts at Maslek's home. 12:49 1:14 to 1::51 3:39 4:34 5:00 | At some unnoted time in the a.m. Maslek goes to a convenience store and then meets an acquaintance for coffee. He leaves the coffee shop at 12:49 and returns home. From home he goes, with a neighbour , to lunch at a fish & chip shop and then home, once again. A male in a car (BLDL698) comes to Maslek's house for a two minute visit. An unidentified car attends Maslek's home as Maslek is coming out of his garage. Maslek sits in the vehicle for a minute before the car drives off without him. Maslek then goes to pick up his son from high school. Maslek then drove to his son's high school to pick him up and they went to Tim Hortons. Surveillance terminated. | The events from the start of surveillance at 9:45 a.m. until Maslek's return home at 1:51 are unremarkable and of no forensic value to the Crown, other than providing some support for Bassi's conclusion that Maslek does not leave regularly for a workplace . These two brief meetings at 3:39 and 4:34 are suggestive and potentially suspicious but with no hand-to-hand observations made it would be speculative to infer they were drug related. |
| Apr. 4/13 | 11:39 a.m. 2:02 to 2:33 2:43 to 2:59 4:00 to 4:04 | Maslek is followed as he apparently completes some air-conditioning work at 7866 Salisbury Place before returning home. An unidentified male attends Maslek's home and stays there for about half an hour, until 2:33. Maslek picks up his son from high school and then stops in at a Dollarama store before returning home at 2:59. Lawrence Heywood comes to Maslek's house and stays for a very brief visit. Heywood is then followed home. | See [71] Nothing can be inferred from this attendance. These observations are wholly benign save for demonstrating that Maslek does not keep very regular hours of employment. This is the second time in slightly over one week that Heywood makes a short visit to Maslek's home. Bassi opined, and I agree, that these short visits connote drug dealing and a drug dealing relationship between Heywood and Maslek. These visits are cogent corroboration of the information provided to the NRPS by C.I. #5 and C.I. #6 . |
| Apr. 8/13 | 1:50 2:08 2:08 to 2:15 2:24 3:00 3:00 to 3:06 3:38 to 4:00 4:36 to 4:42 4:48 to 5:20 | Police commence surveillance of Maslek's home. Maslek returns home. Maslek is followed into his driveway by an unidentified male. They go into Maslek's garage and the male leaves six minutes later. Lawrence Heywood attends Maslek's home but only stays for four minutes and then Heywood is followed back to his residence at 4108 Brookdale. The NRPS surveill Heywood's residence and observe several short term visits of people to that home. A pickup truck arrives and leaves. A van arrives and leaves. A Sunfire arrives and leaves. A Dodge arrives and stays until 5:20 when police leave. | This is a short visit and may be suggestive of a drug transaction but I infer the garage door was down and the police have no actual knowledge of what transpired. The visit is suggestive but the purposes of it remain speculative . This is the third visit by Heywood to Maslek during the period that Maslek was being surveilled by the NRPS. His attendance on multiple occasions corroborates the information provided by C.I. #5 and C.I. #6 that the Serbian man named Lou who supplies Heywood with cocaine is the accused. The available and in my view reasonable interpretation of these short visits to the 4108 is that Lawrence Heywood was re-stocked by Maslek and then sold his cocaine to his many customers thereafter . |
Ruling
[107] The Application is dismissed. I am of the view that the surveillance evidence, highlighted in bold in the preceding table, is sufficiently corroborative of the C.I. evidence, especially that of C.I. #5 and C.I. #6, to permit the totality of the circumstances to demonstrate a credibly-based probability that cocaine would be found in Maslek's home, as deposed to by Bassi. Put otherwise, I am of the view that based upon the record which was before Bisson J.P., as amplified on this review, Bisson J.P. could have granted the authorization.
[108] I find that Bassi did not commit or perpetrate any fraud upon His Worship or this Court. Moreover, while Bassi did not candidly indicate that, on occasion, he was drawing conclusions from the raw surveillance data, his conclusions were entirely reasonable, when that raw data was considered.
[109] Despite that, this ITO was hardly a model of clarity or compliance with aspects of the governing jurisprudence. My decision dismissing this Application and finding that the ITO met the test for the issuance of a search warrant is much closer to the line between upholding the warrant and quashing it than needed to be the case. Bassi, in particular, and other members of the NRPS generally, ought to have been made aware of and followed Rocha. In addition to disclosing the complete criminal record of any C.I.s and disclosing whether they have any outstanding charges, their motivation for informing should always be provided, too. Equally importantly a deponent ought to clearly and expressly provide the C.I.'s source of knowledge. If that knowledge was gained personally then that should be clearly stated. If that knowledge was not gained first-hand then how the C.I. came to know of the information he provided to the police ought to be clearly disclosed.
[110] The conclusion that I have reached upholding the issuance of this search warrant issuance derives to a great extent from the corroborating effect of the surveillance evidence. That evidence demonstrated a relationship between two known drug dealers, Johnny Mac and Lawrence Heywood, and the Applicant. The evidence of the relationship between the Applicant and Heywood is particularly strong.
[111] That corroborating surveillance evidence is not evidence of mundane or commonplace events or evidence of innocent association by mere happenstance. The confirmation and corroboration by police surveillance of the relationships disclosed by the C.I.s when taken together with the historical information known about Maslek satisfies me that the ITO demonstrated a credibly-based probability that cocaine would be found in Maslek's home. In my view Bisson J.P. acted correctly in granting the search warrant. That is to say that he could have granted the search warrant based upon this ITO.
Decision disclosed the 19th day of September 2014
Edited reasons signed at St. Catharines, this 29th day of September 2014
J.S. Nadel (O.C.J.)