Court Information

Information No.: 2111-998-S13-0348

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Hassan Hassan

Before: Justice L.P. Thibideau

Heard on: April 19, 2017

Ruling on Motion released: May 5, 2017

Counsel

V. Essert — Counsel for the Federal Crown

A. Dresser — Counsel for Hassan Hassan

Decision

THIBIDEAU, J.:

Introduction

[1] Mr. Hassan Hassan is charged that on the 24th January 2013 he possessed cocaine for the purposes of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Substances Act and possession of a prohibited weapon, contrary to section 91(3) of the Criminal Code.

[2] These charges relate to the seizure of 156.5 grams of cocaine and a pair of brass knuckles from apartment nine, 139 Westchester Crescent, St. Catharines, Ontario.

[3] This is a Charter application wherein the applicant argues his rights to be free from arbitrary search under section 8 of the Charter of Rights and Freedoms was infringed when police executed a warrant search on his home at apartment nine without having reasonable and probable cause to do so. The focus is on the sufficiency of the content of the information to obtain, presented by the police to the issuing justice of the peace for the warrants, for apartments six and nine in the building at 139 Westchester.

[4] The proposition is simple. If the ITO contains sufficient facts so that the issuing justice could find reasonable and probable grounds existed the police entry to the home was proper and legal. If the facts disclosed, and vetted on review now, do not disclose reasonable and probable grounds existed for the warrant to issue, the entry was illegal and the section 8 rights of Mr. Hassan have been violated.

[5] Should this be so it is necessary to address the issue of exclusion of evidence pursuant to section 24(2) of the Charter.

The ITO Content

[6] The content of the ITO in relation to Mr. Hassan falls into three categories:

1. Information that on its face directly connects him to the drug charge;
2. Information that on its face indirectly connects him to the drug charge;
3. Information that relates to persons of interest or extraneous matters that do not connect Mr. Hassan to the drug charge.

Background

[7] There is background to these three considerations and the investigative process in general. Detective Constable Ian Sills the affiant in the ITO had been a member of the police force in St. Catharines for some eight years; a member of the Street Crime Unit – one year as a trainee and one-and-a-third years as an operating member leading up to the dates of this investigation in January of 2013.

[8] Other police officers involved had terms of service ranging from four to twenty-four years. Particularly Detective Constable Jeramie Sills, a brother of the affiant, had some five years as a police officer at the time of the investigation. There were no rookies.

[9] The persons of interest here are four male individuals, all described in the ITO at one time or another as Somalian or non-white; Khalil El Atabani, Ahmad Al Hami, Ali Mahmoud, and Hassan Hassan. The ITO sets out the belief that all four persons worked together to street distribute cocaine in the Niagara Peninsula in the manner described by witnesses and police observation, and contained in the ITO. The police relied heavily in their investigation on three confidential informants. Confidential Informant Number One, who the police say had a reliable track record as an informant before the investigation, CI#2 who had no information track record at the time, and CI#3 who had a limited track record, providing police in the past with information regarding street addresses that was corroborated through surveillance and other information received. It is not clear what kinds of crime investigations were involved.

[10] CI#1 and CI#2 are drug users and buyers and have criminal records for unspecified offences, except their respective records are said not to include offences for perjury or public mischief. CI#3 is not said to have a criminal record at all.

[11] The investigation leading to the charges against Mr. Hassan and others went from June of 2012 to the arrest date of the 24th of January 2013. However, the ITO material discloses the active investigation was for a short time in June 2012 and a much more active period of investigation and surveillance from mid-January 2013 to the 24th of January 2013.

Information Directly Connecting Hassan Hassan to the Charges

[12] On January 22nd, 2013 D.C. Jeramie Sills spoke with Confidential Informant Number Two who provided drug dealing information. That informant said that four persons of interest, including Hassan Hassan, who was using a redacted nickname or alias, were working together distributing crack cocaine in the Niagara Region. This involved a stash house of unknown location. There was information that Hassan Hassan was using a dark gray Honda, plate number B-P-B-W-2-3-5, in order to carry out drug selling transactions. This informant also advised that vehicles were changed from time to time to avoid detection as the vehicles were used for drug transport and sales. The same vehicle, B-P-B-W-2-3-5, was seen by police on the 16th of January 2013, operated by one of the other persons of interest, Ali Mahmoud.

[13] On the 21st of January 2013 P.C. Jeramie Sills surveilled a Mazda vehicle B-P-B-W-1-7-2 arrive at the address of interest, 139 Westchester. The vehicle was followed on a route with several stops in St. Catharines and Niagara Falls, all of short duration, involving the meeting of persons at another vehicle or at a residence. During the course of this trip the driver was identified at one stop as he exited the vehicle as Hassan Hassan. Detective Constable Jeramie Sills is said to have made the ID based on previous unspecified dealings with Hassan Hassan. Mr. Hassan is referred to as a black male in this occurrence.

[14] Previously, Confidential Informant Number One had provided information that that informant knows a male with name redacted, who sells crack cocaine from a Mazda vehicle, B-P-B-W-1-7-2, with a drug supply located at 139 Westchester Avenue. Only the vehicle report from this informant connects Mr. Hassan to the drug purchaser referred to by Confidential Informant Number One.

Information Indirectly Connecting Hassan Hassan to the Drug Charge

[15] The ITO contains information that several vehicles surveilled had a common ancestry and license plates close in number sequence. There was informant information provided that four male drug dealers were using rental cars in shifts to sell drugs in order to evade police detection. The vehicle license plates either reported or observed by police were: B-P-B-W-1-7-2, B-P-B-W-2-3-5, B-P-B-W-4-9-0, B-B-E-H-5-7-8.

[16] Surveillance connected vehicle B-P-B-W-1-7-2 to Hassan Hassan and another unnamed dealer who could be Hassan Hassan or not. This vehicle was also connected by surveillance on the 15th of January 2013 to Ahmad Al Hami.

[17] B-P-B-W-2-3-5: police observation identified Ali Mahmood as a driver of this vehicle.

[18] B-P-B-W-4-9-0: police observation identified Khalil El Atabani in Thorold in October of 2012, as the driver verified by photo identification. A purported drug deal was observed based on pickup and time of duration of ride of passenger.

[19] B-B-E-H-5-7-8: Confidential Informant Number One provided information this vehicle was driven by a non-white, or Somalian, to sell drugs. This informant identified Ahmad Al Hami by photo and by physical description, as the person connected to this vehicle in 2012.

[20] The three vehicles with nearly consecutive plate numbers were traced by the police to a leasing company in the Toronto area, sent to another leasing or rental company in St. Catharines. However, no paper trail connects any person of interest with the lease rental of the three vehicles. The vehicles seen at or in the vicinity of 139 Westchester were as surveilled as follows:

• 15th of January 2013: B-P-B-W-1-7-2 and B-P-B-W-4-9-0.
• 16th of January 2013: B-P-B-W-2-3-5.
• 17th of January 2013: B-P-B-W-2-3-5.
• 21st of January 2013: B-P-B-W-1-7-2.
• 22nd of January 2013: B-P-B-W-2-3-5.
• 23rd of January 2013: B-P-B-W-2-3-5.

[21] On the 17th of January 2013 Detective Constable Jeramie Sills spoke to the building owner-manager of 139 Westchester. Using open-ended questions Sills asked if any building occupants were Somalian-looking. Sills took the answer to questions to mean Khalil El Atabani occupied apartment six; Hassan Hassan occupied apartment nine, with a co-tenant James Harris.

[22] It is this conversation that is the first direct indicator of possible involvement of Hassan Hassan in this investigation.

[23] Hassan Hassan has a criminal record for break and enter and a simple possession of a narcotic. He is recorded in police files as the subject of four previous drug-related incidents, including one incident as far back as December of 2010. In that incident he and a person of interest, Khalil El Atabani were in a vehicle at a ride stop. Search incident to arrest revealed Hassan Hassan was in possession of crack cocaine, marijuana, two cell phones, and $800 of Canadian money. There was no conviction for any charge arising.

[24] The apartment mate James Harris has two drug-related incidents on file, no convictions.

[25] The investigation done by Detective Constable Jeramie Sills before ITO presentation revealed Khalil El Atabani occupied apartment six in the same building as Mr. Hassan in apartment nine. Subsequently this was shown to be wrong information. P.C. Jeramie Sills had prior drug enforcement experience involving Khalil El Atabani and Hassan Hassan, at 43 Buss Street, Thorold, which they apparently left on or about the 1st of January 2013. He received information that the residence had contained scales with a white cocaine-like powder. This is said to connect the two persons of interest with each other and with drugs according to the ITO content. However, the informant for this address is not named or described and reliability is not known.

[26] P.C. Jeramie Sills speaking to the 139 Westchester building owner-manager on January 23rd, 2013 was told Khalil El Atabani had moved into apartment six one-and-a-half years ago. The officer noted he told the owner manager that was "strange" because he knew El Atabani had lived at 43 Buss Street in Thorold up to January 1st, 2013, less than a month before.

[27] There was no such time contradiction with respect to Mr. Hassan in apartment number nine, with Mr. Hassan "just moving in".

[28] At this time, at approximately 6:10 p.m. P.C. Jeramie Sills learned his Khalil El Atabani, person of interest, was not Khalil Al Bassi, the occupant of apartment six in the building, who was a Brock University student. It is at this time that D.C. Jeramie Sills' notes indicate he called D.C. Ian Sills to advise him of the new identity situation regarding the tenant of apartment six not being the person of interest Khalil El Atabani.

[29] Confidential Informant Number One identified 139 Westchester as a storage place for crack cocaine by her seller.

[30] Confidential Informant Number One identified by photo Ahmad Al Hami as her seller.

[31] Police records show that on the 13th of February 2007 a police warrant search of a different St. Catharines residence revealed Ahmad Al Hami was in an apartment with four other persons, along with cocaine, cash and drug selling paraphernalia.

[32] This connects only this one current person of interest with a similar past operation, again without conviction.

[33] The observations provided by Confidential Informant Number One and Confidential Informant Number Two, along with police surveillance, provides connection between the described rental vehicles and one or more of the four persons of interest with respect to each vehicle, including observed connection between Hassan Hassan and two of the vehicles, as a driver.

[34] Not only Hassan Hassan is seen at or connected to 139 Westchester. Khalil El Atabani was observed by police surveillance at this address, confirmed by photo identification. He was seen together with Ahmad Al Hami, who was connected to vehicle plate number B-P-B-W-1-7-2, at the building.

Information Relating to Other Persons of Interest

[35] There is additional information about three of the persons which the affiant relies upon to bolster the case for the warrant. Facts already cataloged will not be repeated. While each person is described in differing terms in the affidavit material it is clear that none of the four persons of interest are Somalian. However each can be described as non-white, all have descriptions and names demonstrating a North African or near East heritage, wherever born. Some are identified by police surveillance as black, even when identified by name connected to police file histories. None can be said to be incompatible with information provided by the three confidential informants, particularly informants one and two, who each identify one person of interest by name, Confidential Informant Number One using photo identification for Ahmad Al Hami, and the other confidential informant, number two, identifying all four persons of interest by name.

[36] Various drug association events in the past are described connecting persons of interest to those events without any convictions resulting, whether during this investigation or previously.

[37] Ahmad Al Hami had no criminal record at the time of investigation and was not on any charges. Khalil El Atabani was observed by police involved in a drug deal in October of 2012 in Thorold. At that time he was in police records, without specifics, as the subject of seven drug reports, without criminal conviction. He has one criminal conviction for a prohibited weapon possession.

[38] Ali Mahmoud was the subject of two drug-related incidents, going as far back as 2008. He has one conviction for simple possession of a controlled substance.

[39] Confidential Informant Number One in two interviews with Detective Constable Ian Sills in January of 2013, before the ITO was created, gave information connecting Ahmad Al Hami to street cocaine selling by vehicle use, with him working with three or four other non-white males, selling drugs stored at 139 Westchester Avenue in St. Catharines. Rental cars were being used including one with plate number B-P-B-W-1-7-2, with other rental vehicles, to sell cocaine. Rental cars were used for the express purpose of avoiding connection of vehicles to names. One of the dealers was identified as Ahmad Al Hami by photo.

The Crown's Argument

[40] The Crown argument is succinct; the ITO material based on the detailed investigation fully reported in the ITO material is sufficient to conclude, as the issuing justice of the peace did, that the reasonable and probable grounds existed for issuance of the warrants for apartments six and nine at 139 Westchester Crescent. This is so despite the fact that it became known, after presentation of the ITO material, and before warrants' pickup, that apartment six was erroneously shown to be a place where drugs would likely be found. That error was corrected by non-execution of the warrant for apartment six. This does not take away from the validity of the warrant for apartment nine, where execution did take place. All of the criteria for ITO content and issuance of the warrant for apartment nine were present.

The Applicant's Argument

[41] The voluminous case law supplied to the court by both parties does not show two contrasting or opposing lines of cases. Rather, the defence submits the case law is correct and compatible. The issue is how that case law applies to the particular facts of this case. It is here that the Crown and defence disagree. The defence raises a multitude of concerns with the ITO material, including, the conduct of the police investigation, conclusions reached by the affiant, the content of the ITO, the degree or lack of corroboration. More particularly, once false or misleading information is excised from the ITO material there is insufficient left to demonstrate reasonable and probable grounds for warrant issuance. The law, not disputed, a summary of the applicable principles only is required. The reviewing court must follow certain principles for proper and adequate review.

Applicable Legal Principles

1. The reviewing court must not substitute its own decision for the decision of the issuing justice. It is not a de novo hearing.

2. Similarly, the reviewing court, based on an amplified review record, must consider if the issuing justice could have reasonably granted the authorization requested.

3. The timeframe for consideration is what was known or could have been known at the time of issuance. The reliability of information must not be considered ex post facto from the results of the search, which results are irrelevant to the review process. R. v. Garofoli, (1990), 60 CCC (3d) 161, at para 68.

[42] The R. v. Debot, [1989] 2 S.C.R. 1140, para 53 factors must be considered when assessing the sufficiency of the warrant based on information from an informant:

1. Is the source credible;
2. Is the information compelling; and
3. Is there corroboration.

[43] Insufficiency in one category can be compensated for by sufficiency in the others. I take this to mean the analysis is fact driven, not unlike a section 24(2) Grant analysis.

[44] The test is reasonable and probable grounds. Belief as to the fact lies on a continuum, starting at the bottom with whim or hunch, or speculation, proceeding through suspicion, reasonable suspicion, reasonable and probable grounds, prima facie case, belief on the balance of probability, to reasonable certainty, and finally proof beyond reasonable doubt.

[45] Reasonable and probable grounds, while on the lower end of the scale, does not fall to the level of hunch or speculation. Neither is it elevated to prima facie case nor the balance of probability standard, nor a belief that the person has in fact committed the offence.

[46] The process is one of objective overview. It is not an overly onerous test. However, it is a more rigorous a test than an overview of reasonable and probable grounds for a roadside stop and a charge for impaired driving. Reasonable grounds review with respect to search warrants takes into account the ability to gather evidence over time, the ability to assess evidence and test evidence for inclusion in the ITO material before presentation for consideration by the issuing judicial officer. It is the higher standard for reasonable and probable grounds explained in R. v. Censoni, [2001] O.J. No. 5189 (ONT S.C.) para 59, as more carefully demonstrated and reviewed in R. v. Bush, 2010 ONCA 554, para 39 and 42.

[47] The warrant application is an ex parte, one-sided proceeding, thus, the requirement for full, fair and frank disclosure of all facts reasonably necessary, whether favorable or not, to the police investigation. As in all police investigations it is not permissible to look only at incriminating facts, exonerating facts must also be considered.

R. v. Golub (1997), 117 C.C.C. (3d) 193 (ONT.C.A.) para 21.

R. v. Littler [2008] O.J. No. 3378 (ONT S.C.) para 10.

[48] Evidence found to have been improperly included is excised. What is left determines sufficiency. R. v. Plant (1993), 3 S.C.R. 281 para 51.

[49] Case law from both factums provide guidance in assessing or reviewing the ITO content and its characteristics for purposes of challenge. The specifics will follow.

Examination of the ITO Content

[50] The applicant argues that at the end of the day the sufficiency of the redacted ITO content, after excision of unacceptable content, is not sufficient for reasonable and probable grounds. The content has negative characteristics which result in this conclusion:

1. It is misleading;
2. There is a lack of full, fair and frank disclosure; and
3. The ITO protocol was not followed.

[51] The result is that on the whole the content is not credible and reliable, compelling or corroborated, the R. v. Debot, supra standard. The last argument must be tempered by the countervailing consideration that the ultimate test is one of reasonable and probable grounds to believe, and it is error in law to downgrade to reasonable suspicion, or less, or upgrade to prima facie case, or more.

Credibility and Reliability

[52] It is argued that disclosure that all three confidential informants have criminal records, but not for perjury or public mischief, is not sufficient when determining the credibility or reliability of the three informants. In fact, one informant did not have a record. Their respective criminal records should have been disclosed with the issue of crimes of general dishonesty a relevant consideration.

R. v. Rocha, 2012 O.J. No. 4481 (O.C.A.)

R. v. Ballah and Long, Justice A.J. Watson, St. Catharines, Ontario, 15 September 2015.

R. v. Jablonski, 2015 ONSC 2325.

[53] As with most legal propositions the issue of an informant's criminal history affecting honesty and reliability is not simple. On the one hand there are cases beginning with R. v. Rocha, supra, that require disclosure of the criminal record in the ITO to assist with the assessment of the credibility and reliability of the informant. Any identifying characteristics of the record can be redacted so that only the police and the issuing judicial official know the record content, thus safeguarding anonymity. This provides the issuing judicial officer with a reasonable basis to assess informant credibility.

R. v. Maslek, 2014 O.J. No. 4864 para 93-96.

[54] On the other hand the failure to follow the best practice of supplying the complete criminal record of an informant is not in itself fatal to the credibility and reliability of the information provided by that informant. In addition the content of the ITO need not be perfect.

R. v. Maslek, supra.

[55] Information provided by an informant can be reliable where bolstered or supported by other evidence, such as fellow informant corroboration, and police surveillance corroboration. This is particularly so where the information provided is specific and capable of corroboration.

R. v. Thomas McAlpin, 2014 ONSC 7331 para 32.

[56] Following the Debot, supra principles the assessment of the validity of an informer's tip is to be made on the basis that weaknesses in one of the Debot, supra factors may, to some extent, be compensated for by strengths in the other two factors.

R. v. Crevier, 2015 ONCA 619 para 107.

[57] On the facts of our case the lack of detailed criminal record disclosure in the ITO is a weakness. This is particularly so when other cases as above-noted, involving this police force have focused on the problem of criminal record disclosures. However it is not clear that in January of 2013 the affiant would have been aware of this, particularly those cases cited coming from the same Regional Municipality of Niagara.

[58] On our facts there was substantial corroboration of drug trafficking details by Confidential Informant Number One, and by Confidential Informant Number Two, regarding the number of non-white males involved, the method of trafficking, through rental vehicles, and the drugs trafficked.

[59] There was also very significant corroboration by police surveillance on several occasions with respect to identified males including Mr. Hassan Hassan, the use of rental vehicles and the connection to 139 Westchester.

[60] To put it another way, there was no reliance on the word of any single individual to put the ITO case. Information provided over time and multiple interviews, especially with Confidential Informant Number One, provided specific information which could be verified or rejected by cross-referencing to other information received, and by police surveillance and investigation, instigated from information received, otherwise verified or rejected.

[61] The result was an ITO that contains verified information related to specific identified persons, specific identified drug dealing activity, specific identified method of dealing, and a specific identified location for a drug stash connected to several persons of interest, particularly Hassan Hassan, mostly referenced and corroborated.

[62] In the circumstances the weakness caused by lack of detailed criminal record is offset by the nature and quality of facts supporting the other two factors. Those factors were detailed and corroborated.

[63] As in R. v. Ballah and Long, supra, the lack of criminal record disclosure is not fatal to the correctness of the decision being reviewed.

[64] It is argued that Confidential Informant Number One provided information only in relation to one person of interest, Ahmad Al Hami, nothing on Hassan Hassan at all. This is not so. Generally this informant provided the following information:

a) Three or four non-white or Somali males worked together to sell cocaine to that informant and others;

b) They used a rented motor vehicles to avoid detection;

c) 139 Westchester was a storage place for drugs for sale;

d) Vehicles used were the Hyundai, plate number B-B-E-H-5-7-8 with Ahmad Al Hami operating the vehicle approximately one year earlier; the Mazda with plate number B-P-B-W-1-7-2. During the course of surveillance police identified Hassan Hassan as the driver of this vehicle on one occasion. CI#1 also provided information she bought drugs from the driver of plate number B-P-B-W-1-7-2 in January of 2013. The assertion that CI#1 did not identify Hassan Hassan is misleading in the context of all the evidence available. CI#1 did not name Hassan Hassan in the redacted version, but that informant did supply identifiers with respect to motor vehicles used, group of people involved, location of stash house. That information was largely verified by others, by linking Mr. Hassan to vehicle B-P-B-W-1-7-2, in a common enterprise to use it to sell drugs from a stash house at 139 Westchester where Mr. Hassan rented apartment number nine.

[65] It is argued correctly that no confidential informant motivation to provide information was provided in the ITO. The ITO is essentially silent on this issue. Motivation is important and should be known and is not. The information could have been false.

[66] Had the information provided by the three confidential informants been isolated, one from the other, and from the investigation generally, to support the warrant, the motivation factor would be great. However there is no evidence that the confidential informants knew each other or colluded in information given. The information provided by each does not support collusion, each one supplying different, sometimes similar facts from stated personal experience, not hearsay, for most of the facts provided, not all. Yet the information provided by Confidential Informant Number One and Confidential Informant Number Two had compelling similarities related to name of a person of interest (Ahmad Al Hami), drugs being trafficked, street sales to users from rented vehicles, complete with license plate numbers and vehicle descriptions, and a stash house being used, known to one of the informants but not to the other. Police surveillance confirmed much of the factual detail provided with respect to the four individuals named by Confidential Informant Number Two, which included Mr. Hassan Hassan, the rented vehicles used in the connection by visits of several of the four persons of interest, and the rented vehicles to 139 Westchester.

[67] The totality of information provided and verified makes up for any deficiency regarding lack of information about motivation affecting reliability of the informants.

[68] It is argued that there are gaps in the verification of assessments of the reliability and quality of the informants by the police, and gaps in corroboration of their histories and status as proven or unproven sources. Specifically, Confidential Informant Number Three provided no information about Hassan Hassan at all. Confidential Informant Number Three's background is simply unsubstantiated; a police conclusion without verification — a past provider of corroborated addresses, information in police investigations. This does not pass the collateral act test. I agree.

[69] Confidential Informant Number Two is not a proven source with bold assertions that this informant is involved in the drug culture and therefore knowledgeable and in a position to have knowledge. There is a risk that the information is hearsay, possibly more than once removed. The result is serious questions of reliability. Taken in isolation the information provided might well fail the credibility and reliability test. However this approach is not permissible. The ITO as presented to the issuing judicial officer, contained much more. There were omissions that could've been included — better information to support the conclusions reached by the affiant; details of drug culture involvement; details of past reliable information provided; and whether information conveyed was firsthand or not. But there is more. It is clear that Confidential Informant Number One and Confidential Informant Number Two had first-hand involvement to provide information. Confidential Informant Number One was personally involved in purchases in June of 2012 from the non-white or Somalian with physical description provided. She could describe and provide detail with respect to the two motor vehicles used in her purchases. It is likely that other information could have come from conversation with the seller or from hearsay sources, for instance number of people involved, use of rented cars, the location of the stash house.

[70] Similarly, Confidential Informant Number Two has an apparent mix of facts derived from personal experience, seller statements, and hearsay – likely direct knowledge that Hassan Hassan was driving a vehicle with plate number B-P-B-W-2-3-5 to sell drugs – likely seller supplied or hearsay, the names of four individuals involved working to sell drugs together, with use of rented vehicles, with an unknown stash house.

[71] Confidential Informant Number Three information was not apparently from personal knowledge and lacked detail. That informant simply provided information that a large group of Somalian males, three or four, worked together in Niagara to distribute crack cocaine in shifts, night and day.

[72] Confidential Informant Number Three is described as someone who has provided surveillance corroborated address of interest information in the past for police investigations. Nothing more. The information provided by this informant has little evidentiary value. It is nonspecific with virtually no detail. The contribution to the facts to support the issuance of the warrant is negligible to nil even though there is some generic corroboration for her information. Her information factor with respect to reasonable and probable grounds was virtually nil, and on review is virtually nil. However the information provided by the confidential informants numbers one and two survive the credibility and reliability factor test. For reasons already set out their respective information provided is significantly, not merely incidentally, from personal experience, verified by corroboration from similar facts and police investigation and surveillance.

[73] Specific facts particularly related to the number and description of males involved with use of rental vehicles and a stash house, corresponds with subsequent facts discovered by surveillance — rental cars, observed to be driven or occupied by one or more of the four persons of interest, the nature of the journeys observed leading to more than mere speculation that drug deliveries were observed by fairly experienced officers.

[74] However these observed vehicle trips do not in themselves meet the test for reasonable and probable grounds for arrest, based on trips alone as set out in R. v. Dezainde, 2014 ONSC 1420.

[75] The totality of the information in the ITO bolsters the credibility and reliability of information received from these two sources to overcome the inadequacies with respect to personal background detail of each informant, and the sources of information not likely from personal information knowledge. This approach and assessment is in keeping with the decision in R. v. Debot, 52 CCC (3d) 193 at 215 (S.C.C.), where the court approved of Justice of Appeal Martin's view that "the totality of the circumstances" must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two. Likewise R. v. Garofoli, supra at para 191, summarizes the thinking on informants:

(a) Hearsay of an informant can provide reasonable and probable grounds, but not by itself;

(b) Reliability of information received from an informant is assessed by recourse to "the totality of the circumstances". There is no formulaic test, the court must look at a variety of factors including:

(i) Degree of detail;

(ii) Source of knowledge;

(iii) Indicia of reliability of the informant from factors that include past performance, confirmation from other investigative sources.

(c) The end does not justify the means. Results of the search cannot ex post facto, provide evidence of reliability. The level of verification or corroboration required varies — it is higher where informant credibility cannot be assessed, where fewer details are provided, and the risk of innocent coincidence is greater.

[76] In our case the quality of information provided by Confidential Informant Number One and Confidential Informant Number Two and the corroborative evidence compensates for the lack of motivation evidence, and lack of ability to assess credibility.

The Issue of Compelling Facts

[77] The applicant argues that information must be detailed and specific in relation to Hassan Hassan to be compelling. In this case the information provided is only the following:

(a) Unproven Confidential Informant Number Two identifies Hassan Hassan and three other individuals as co-dealers in one interview with Detective Constable Jeramie Sills on the 22nd of January 2013. The conversation included other information:

• Rental vehicles were used to distribute;
• The persons named work shifts and took turns delivering crack cocaine;
• There is an unknown location stash house where they attend to get and then deliver the crack cocaine.

(b) Hassan Hassan was driving a vehicle with plate number B-P-B-W-2-3-5.

(c) Vehicles are changed around to avoid detection.

[78] The applicant argues there is no other evidence against Hassan Hassan other than Confidential Informant Number Two's unproven statements. Hassan Hassan was never observed driving the vehicle identified by Confidential Informant Number Two. Secondly the applicant argues that a time issue arises. The information provided in conversation with Confidential Informant Number One originally occurred in June. The year unknown. Even if in 2012, there is a six-month timeframe between conversation and ITO presentation. In fact the information provided in conversation with Confidential Informant Number Two occurred in early January 2013, but the conversation does not make it clear when the informant observed Hassan driving the Honda motor vehicle B-P-B-W-2-3-5, or for what purpose he was driving. The information obtained from the informants does not clarify what is said to be firsthand and what is not. There is no logical connection or link to 139 Westchester as a stash house or Hassan Hassan use of a stash house.

[79] Confidential Informant Number Three provided no specific details to connect Hassan Hassan to drug dealing and no specific details that further the investigation.

[80] It is clear the investigation into the drug offences began with the conversation the affiant, Detective Constable Ian Sills, had with Confidential Informant Number One in June. This triggered police research into the motor vehicle described and the person associated with that motor vehicle, the person of interest, Ahmad Al Hami. All other investigative activity occurred in the month of January 2013, preceding the 23rd of January 2013 date of swearing the information to obtain.

[81] It is likely in context that the June date refers to 2012 because police follow-up was the 14th of June 2012 to investigate the vehicle and the person associated with it.

[82] The context of the conversation and follow-up means the conversation took place with recent memory, not historical narrative. All investigations have to start somewhere and this one started some six months before moving for the warrant. The information provided in June of 2012 was verified and corroborated by the January 2013 investigation events with respect to the motor vehicle, and others, similar rented for use by persons unknown and actually used by more than one person of interest in the investigation. The person identified was connected to other persons of interest by the January 2013 investigation.

[83] The conversation between Confidential Informant Number Two and Detective Constable Jeramie Sills on the 22nd of January 2013 was the source of information that Hassan Hassan was driving a Honda motor vehicle plate number B-P-B-W-2-3-5, without a specified date. However the information given at the time was current. The informant said the four named persons are currently working together, distributing crack cocaine. It is in the context of this statement that all other statements at the time were made. Contextually statements, "they use rental vehicles; they work shifts; have a stash house" refers to the present in relation to the statement date. Thus the statement, "Hassan Hassan was driving", logically means driving at a specified observed time or times contemporaneous with other information provided in this conversation. The timeframe is days or weeks, certainly not months. The issue of whether information provided was firsthand or hearsay has already been dealt with, particularly with reference to the R. v. Debot, supra commentary on untried informants and the necessity for better quality information and corroborative evidence to compensate for any assessment of credibility deficiency caused by lack of detail from an untried informant.

[84] The context of the information provided on the 22nd of January 2013 by Confidential Informant Number Two makes it clear on a reasonable and probable grounds basis, that the vehicle driving related to selling cocaine from rented cars, including the one specified. That there was no link to 139 Westchester or apartment nine in relation to Hassan Hassan and drug dealing is not accurate. There was no direct link. He is clearly identified however by a knowledgeable person, the building owner or manager, as recently moved in as a tenant of apartment number nine. Confidential Informant Number One identified 139 Westchester as a storage place for one drug seller for crack cocaine for sale. It is not that this information alone creates reasonable and probable grounds for issue warrants for apartment nine. Rather, it is part of the evidence accumulated to make out reasonable and probable grounds. It is in this context that the other evidence, that is proper, has meaning.

Corroboration and Police Investigation

[85] The arguments not addressed already in other categories of argument are these:

1. The content of police files available at the time not disclosed in the ITO material are inconsistent with information actually disclosed, particularly with respect to personal identification of the four persons of interest. For instance, police files are ambiguous with respect to the identifying characteristics of Ahmad Al Hami, a white person from Libya; Khalil El Atabani, described as East Indian, but the photos show relatively light-colored skin; Hassan Hassan is Egyptian. And this was contained in existing police files. These facts were not in the ITO material. They could have been part of the ITO material.

[86] But in essence they do not contradict the ITO content. The ITO contained apparent full and fair disclosure of what was being recounted by Confidential Informant Number One and Confidential Informant Number Two regarding identity. A reasonable reading of the information received from these two sources is that the people involved were non-white males who may have been Somalian. The Somalian descriptor is not definitive. In conversation confidential informant referred to a single male as non-white and Somalian, with physical descriptors and details of a vehicle being also provided.

[87] In conversation number two with Confidential Informant Number One, which took place in January, some six months after conversation number one, there was fuller and better information. The same person continues to sell the informant crack cocaine, but now works with three or four other non-white males. Another vehicle is identified, and the photo identification of Ahmad Al Hami is made at this time. In conversation number three, Confidential Informant Number One again describes a cocaine drug purchase from a dealer with a second use of the same dealer vehicle.

[88] On the 22nd of January 2013 Confidential Informant Number Two identified by name all four persons of interest as persons dealing drugs. Physical descriptions are not used at all to identify them to police, only names along with drug selling activity, selling crack cocaine from one fully identified and another, not fully identified, rental vehicles. This witness provides information that Hassan Hassan was driving the identified vehicle. It is Confidential Informant Number Three, with little else to contribute, who talks of a large group of Somalis working together to distribute crack cocaine.

[89] Confidential Informant Number One's and Confidential Informant Number Two's information specifics were corroborated by police surveillance to a large degree. Hassan Hassan was observed driving one of the rented vehicles, not the one identified by Confidential Informant Number Two, but another one of that group of vehicles referred to as "the rentals". Mr. Hassan and the rental vehicles had been separately located at or about 139 Westchester during the course of surveillance.

[90] The sometimes contradictory police profile information was different but compatible:

1. Ahmad Al Hami, born in Libya, Southeast Asian, but also white race ethnicity, with brown eyes. That was police information.

2. Khalil El Atabani, Canadian born of East Indian ethnicity, medium complexion, brown eyes, brown hair. That was police information.

3. Hassan Hassan, physical police record descriptors are non-white, from Egypt, brown eyes, black hair.

4. Ali Mahmoud, no demonstrated police information known to the affiant.

[91] Two things are clear. The police file information is nonexistent for Ali Mahmoud. It is self-contradictory for Ahmad Al Hami. With respect to all four, the physical descriptors are generally compatible with observations of Confidential Informant Number One and Confidential Informant Number Two, and the officers engaged in surveillance, except where the descriptor "black" is used. The police file information, had it been known to the issuing justice of the peace, would have had little or no weight balanced against what was in the ITO material. Actual real names of the four persons of interest were provided from confidential informant disclosure, photo identification for one, experience identification from Confidential Informant Number Two for Hassan Hassan, and experience related information from an officer for Hassan Hassan, along with specified vehicle use for some but not all of the four persons of interest.

[92] Ahmad Al Hami was officer identified as present on the premises of 139 Westchester building with use of photo. Ali Mahmoud was officer identified at 139 Westchester through previous dealings. He is identified there again by police. Hassan Hassan was identified on the premises, and of course he is identified as a tenant.

[93] The rental vehicles associated with the operation are also present from time to time on the premises at 139 Westchester. It is this preponderance of identifying information that is weighed against the lack of disclosure of police file information that results in the conclusion that the outcome would have been the same had the file information being included in the ITO material.

[94] It is argued there is no surveillance connection between Hassan Hassan and the other persons of interest in any material way. There is no direct sighting of Hassan Hassan with the others. However there is some common use of the rental vehicles:

• Ahmad Al Hami used vehicle B-P-B-W-1-7-2 on or before January of 2013, probably two times, as per the information received from Confidential Informant Number One in two interviews. Thereafter he is seen involved with the vehicle at 139 Westchester by surveillance on one occasion.

• Ali Mahmoud used vehicle B-P-B-W-2-3-5 at 139 Westchester on the 16th of January, 2013.

• Hassan Hassan used vehicle B-P-B-W-1-7-2 on the 21st of January 2013, at 139 Westchester.

• Hassan Hassan was identified as the driver of vehicle B-P-B-W-2-3-5 at a different location by Confidential Informant Number Two.

• An unknown driver used vehicle B-P-B-W-2-3-5 at 139 Westchester on the 22nd of January 2013.

[95] These vehicles were identified as being used in journeys with multiple short stops, with multiple short attendances by third parties, over several days in January of 2013. The reasonably experienced officers in the investigation surveilled the activity. The affiant concludes on this evidence and personal histories that, "these males are using rental vehicles to conduct mobile drug transactions" in the ITO.

[96] The result is a credible fact-based connection between Hassan Hassan and the rental vehicles, and the other persons of interest using the rental vehicles. This supports the Confidential Informant Number Two identification of Hassan Hassan with the other Confidential Informant Number Two identified individuals.

[97] There is also the more tenuous 43 Buss Street shared residence history with El Atabani in Thorold.

[98] It is argued that Confidential Informant Number Two information identifying Hassan Hassan as involved with the others in the drug selling is silent with respect to information, or informant familiarity with Hassan Hassan. It is. If this was all, lack of detail from an unproven police informant drug user, with a criminal record, it would not suffice. However the threads of connection extend to corroborative proof of identification through others, including police and landlord-manager, of 139 Westchester, rental vehicles of interest, co-use of residence in the building where the vehicles were seen in mid-January 2013. This corroborative proof of connection bolsters the Confidential Informant Number Two identity evidence to an acceptable level of credibility.

[99] It is argued that two apartments, six and nine and the building itself at 139 Westchester were not sufficiently identified as places where drugs were stored. The issue of mis-identity of occupant of apartment number six is left for the moment.

[100] The ITO provided information connecting Hassan Hassan to specified vehicles of interest. The vehicles were observed on several occasions over a few days to be coming and going at 139 Westchester complete with observed pattern of driving to support drug selling from vehicles.

[101] Two different confidential informants provided information of a stash house, one identifying this building specifically.

[102] The owner-manager provided apartment nine information with regard to recent residence by Hassan Hassan. It would be reasonable to conclude there was a reasonable probability stashed drugs would be on the rented premises of Hassan Hassan even though it was also possible any stash could be elsewhere on the premises of 139 Westchester, including apartment six, at the time, ostensibly occupied by Khalil El Atabani, or any other part of the building.

[103] It is not an either-or proposition. Given the other information tending to incriminate Hassan Hassan and the use of 139 Westchester as a stash house a conclusion accepted by the issuing justice of the peace that apartment nine could reasonably contain drugs for sale, was a reasonable conclusion to reach.

[104] It is argued the mis-identification of Khalil El Atabani as a tenant and the fallout from that, gravely affects the reliability and quality of the information contained in the ITO, and the quality of the police investigation as a whole, calling into question the competency and accuracy of that investigation.

[105] It is agreed the evidence regarding apartment six should be excised from the ITO. The effect is two-fold. It does demonstrate at the least that the first police officer-landlord conversation caused police assumptions to be made that were inaccurate with respect to the residency of Khalil El Atabani in the building. It also creates an apparent discrepancy between the notes of Police Detective Jeramie Sills and oral testimony of Police Constable Ian Sills as to when Jeramie Sills told Ian Sills of the error. These are significant points.

[106] However, to go beyond that to assert that as a result the validity and correctness of the whole police operation is negatively affected to the point it is fatally compromised, is to go too far. Even with the other facts weighing against the presence of reasonable and probable grounds like lack of full criminal record, reliance on lack of proven track record, and lack of paper trail to rented vehicles, apartment six errors do not have the effect the applicant desires. The analysis of the entirety of the evidence shows a heavy reliance on corroboration, police drug enforcement experience, and surveillance to overcome these deficiencies.

[107] From the applicant's point of view there is an unintended consequence of the excision of the apartment six facts. 139 Westchester as a stash house now focuses more intently on apartment nine were Hassan Hassan was a co-tenant.

[108] These investigatory errors do not show bad faith on the part of the police. The incorrect information was not falsified, it was assumed. It did not result in the violation of the rights of Khalil El Atabani or any other individual. These errors were not the result of egregious conduct, rather carelessness.

[109] It is argued that the connection of Hassan Hassan to 139 Westchester as a drug stash house is tenuous, the result of unreliable information.

[110] It is argued that Jeramie Sills' identification evidence of Hassan Hassan as a rental vehicle driver should be excised or disregarded.

[111] Police Constable Jeramie Sills says he recognized the driver as Hassan from previous dealings, possibly a bald assertion. The chronology is this. Sometime in early-mid January 2013 vehicle B-P-B-W-1-7-2 was identified by Confidential Informant Number One as a Mazda rental drug sellers' vehicle referable to Ahmad Al Hami. This would be known to Detective Jeramie Sills as part of the investigative team.

[112] On the 15th of January 2013 that vehicle is observed in the area of 139 Westchester, used in an apparent hand-to-hand drug transaction in the vicinity of 139 Westchester.

[113] On the 17th of January 2013 Jeramie Sills has his first conversation with the building manager-owner. Hassan Hassan is identified as a co-tenant of apartment nine.

[114] On the 17th of January 2013 a police check is made concerning Hassan Hassan. He is recorded as having four drug-related incidents without conviction, including one in December of 2010, which is detailed in the ITO. A mug shot is part of the information in the police records. It is in the context of this evidence that on the 21st of January 2013 Police Constable Jeramie Sills identifies Hassan Hassan as the driver of vehicle B-P-B-W-1-7-2 that went from 139 Westchester on a multiple short stop journey with apparent drug selling indicators. Jeramie Sills first identified the driver as Hassan Hassan when he saw him exit the vehicle and enter a dwelling house. He saw him walk back to the vehicle from the house. The driver was then seen exiting and entering the vehicle while attending a residence at another location. A second extended view of the driver.

[115] Finally the occupants of the vehicle, including the driver, were observed leaving the vehicle for the last time that day.

[116] It is logical to assume the police officer or officers, including Police Constable Jeramie Sills, followed the vehicle as recorded from place to place, for the entirety of the journey.

[117] Police Constable Jeramie Sills identified previous dealings with Hassan Hassan as the driver. That information is to be seen in the context of all the previous information present in the mind of Police Constable Jeramie Sills relative to Hassan Hassan when he made the visual identification while driving.

[118] It is clear, as part of the investigative team, Police Constable Jeramie Sills would have been aware that the vehicle was one of the drug rental cars. He would have had in his memory the 139 Westchester building conversation with the owner-manager when Hassan Hassan was identified as a tenant. He would be aware that the team had checked on Hassan Hassan and his past police incident history. He may or may not have been aware of the mug shot.

[119] It is this historical and recent information that forms the context of the "bald statement" that Police Constable Jeramie Sills identified Hassan Hassan as a suspect. When viewed in this context the identification cannot be said to be "bald assertion". Rather, it has contextual probative value.

[120] As previously indicated there are direct and indirect facts to support the police assertion and the conclusion of the issuing justice of the peace that in the context of reasonable and probable grounds the evidence is from credible sources when corroboration is factored in, and is compelling to the extent that the burden of proof is that of reasonable and probable grounds, not civil standard basis, balance of probabilities, and not the criminal standard beyond reasonable doubt.

[121] The objective reviewer must be careful in the pursuit of compelling evidence not to raise the appropriate standard of proof. What is compelling for the issuance of a warrant is not necessarily the same as compelling for evidence at trial where proof beyond reasonable doubt is the standard of proof.

[122] As previously canvassed the building was identified by one confidential informant as a stash house. Another confidential informant said an unknown stash house was being used. The rental car surveillance revealed more than one person of interest, including Hassan Hassan, operating rental vehicles, sometimes at the premises of 139 Westchester with observed use at least compatible with drug selling.

[123] Hassan Hassan was named as one of four co-sellers in the operation by a confidential informant. He lived at apartment nine. None of these facts by themselves pass the reasonable and probable grounds test. But as a group of facts in context of all the remaining facts in the ITO material, they support a conclusion of reasonable and probable grounds for issuance of the warrant. There is no overwhelming proof drugs could be found at apartment nine, the residence of a proven drug seller. That is not the conclusion reached on the basis of the evidence before the court. However, there is reasonable probability that these facts could be demonstrated based upon the content of the ITO.

Conclusion

[124] In summary, the objective overview analysis of ITO content remaining after excision demonstrates sufficient facts upon which the issuing justice of the peace could issue a warrant relevant to Hassan Hassan and apartment number nine, 139 Westchester. The remaining redacted material is sufficient for reasonable and probable grounds. The analysis demonstrates that while some incorrect information was inadvertently provided, and could have been rectified before issuance of process, there was no intention to mislead or fabricate. While some available information was not included, in context, the absent material was not fatal when the volume of inculpatory and corroborated facts are factored in. The totality of the ITO was credible and reliable, amply corroborated to address deficiencies, and compelling in the context of the reasonable and probable grounds standard. The application is therefore dismissed.

Dated at St. Catharines, Ontario

This 5th day of May 2017

The Honourable Justice L.P. Thibideau