Court Information

Date: April 26, 2018

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen

And: William Lilly

Counsel:

V. Chan for the Respondent (Crown)
E. Pace for the Applicant (Defendant)

Heard: April 3 and 4, 2018

Before: Melvyn Green, J.

Reasons for Ruling

(Re Garofoli Application)

A. OVERVIEW

[1] William Lilly, the Applicant, is charged with possession of criminal proceeds, some $3,600. He is also charged with three counts of possession of prohibited drugs – cocaine, MDMA and GHB – for the purpose of trafficking. All three of these drugs are listed in Schedule 1 of the Controlled Drugs and Substances Act (the CDSA). As such, their constructive trafficking carries a maximum penalty of life imprisonment upon conviction.

[2] The drugs and alleged proceeds were seized on August 4, 2015 during the execution of a search warrant at the Applicant's residence: apartment 1604 at 100 Maitland Street, a high-rise building in downtown Toronto. The Applicant, by way of preliminary motion, challenges the validity of the search warrant on the basis that the sworn "Information to Obtain" ("ITO") tendered in support of its issuance fails to comply with the statutory requirements for a CDSA warrant and is therefore constitutionally deficient. Accordingly, the Applicant's argument continues, the police seizure of the drugs and money from his apartment violated his Charter s. 8 rights and, pursuant to s. 24(2) of the Charter, evidence of these seizures should be excluded at his trial. Absent such evidence, the Crown concedes there is no foundation for the Applicant's prosecution for the offences charged.

[3] Like many cases involving search warrants issued in aid of drug investigations, a substantial portion of the information set out in the ITO placed before the issuing justice is attributed to confidential informants – "CIs", as commonly abbreviated. Consistent with its obligation to protect the identity of such sources (see R. v. Leipert, [1997] 1 S.C.R. 28), any information that risked identifying the CIs was redacted by the Crown before a copy of the ITO was disclosed to the defence. The Crown conceded that the residue of the redacted ITO was facially inadequate to support issuance of the warrant on a s. 8 review. Accordingly, it applied to proceed by way of production of judicial summaries of the redacted portions, consistent with the "step 6" procedure prescribed in R. v. Garofoli, [1990] 2 S.C.R. 1421, at 1461. Following my review of and some amendments to a Crown-prepared draft, judicially approved summaries of redacted portions of the ITO were provided to the defence. A single redacted paragraph was incapable of summarization without jeopardizing the informant privilege. As a result, I disregard that paragraph in assessing the validity of the warrant: see R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.), at para. 87.

[4] As summarized by the Court of Appeal in R. v. Crevier, supra, at paras. 89-90:

Step six of Garofoli is an exceptional procedure, in that the trial judge sees and relies on information that has not been disclosed to the accused because of the need to protect informer privilege. This procedure arises in the pre-trial process, which does not go directly to the accused's guilt or innocence. Yet, in many cases, the outcome of the challenge to the warrant will dictate the outcome of the trial and the accused must still be able to mount a sub-facial [as well as facial] challenge to the warrant, as part of his or her right to make full answer and defence. …

[Accordingly], trial judges must strike an appropriate balance so as to ensure the accused's right to full answer and defence is adequately protected. This is done by preparing a carefully-crafted judicial summary and giving appropriate weight to the redacted details that were not directly challenged. With respect to the judicial summary, the trial judge must be satisfied that the summary, together with other information available to the accused, provides the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence. To the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them.

[5] An assessment of the legal competence of an ITO premised, as here, at least partially on intelligence collected from CIs depends on whether that information is sufficiently reliable – that is, globally compelling, credible and corroborated – to meet the statutory requirement for issuance of the warrant when combined with the direct results of the police's own related investigations: R. v. Debot, [1989] 2 S.C.R. 1140. The "three-C's" Debot standard inevitably impacts on the crafting of step 6 judicial summaries. As explained at paras. 70-71 of Crevier:

To give effect to the right to make full answer and defence at step six, the accused must be able to mount an effective challenge of the ITO and, in particular, challenge in argument or by evidence whether the Debot criteria of compellability, credibility, and corroboration have been met. At the same time, informer privilege must be protected. …

… In step six, some information provided by or concerning the informer is not revealed to the accused but is nonetheless available to the judge in assessing the validity of the warrant. The only caveat [as said in Garofoli] is that the accused must be "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence."

Put more succinctly, the defence cannot make full answer and defence in the context of a step 6 proceeding unless it can meaningfully address the three-C's. Here, defence counsel, upon having reviewed the judicial summaries, posed a number of supplemental questions for which clarifying answers were provided by the Crown. Defence counsel then allowed that she was adequately aware of the nature of the redacted information to meaningfully challenge the validity of the warrant. She did not, at that point, wish to cross-examine the ITO affiant, nor did she (or Crown counsel) apply to call any evidence on this motion or otherwise seek to amplify the record.

[6] The record, then, consists of:

the search warrant,
the sealed original, unaltered ITO (upon which the issuing justice relied and to which only Crown counsel and I have access);
the redacted ITO, as disclosed to the defence;
the judicial summaries, as provided the defence, of the redacted portions of the ITO; and
Crown counsel's answers to supplemental questions posed by the defence.

[7] To be clear, to protect confidential informant privilege any detailed discussion in my reasons of the contents of the ITO is necessarily restricted to the redacted version, as augmented by the judicial summaries and Crown clarifications shared with the defence. I have elsewhere noted that the Garofoli step 6 procedure "raises inevitable concerns about both public access to and public accountability of the judicial process": R. v. Herdsman, 2012 ONCJ 739, [2012] OJ No 5598, 272 C.R.R. (2d) 307, at para. 11. More direct efforts to challenge the procedure on the basis of Charter s. 7 infringements have thus far been rebuffed (if without consideration on the merits): see R. v. Reid, supra. Accordingly, step 6 is the sole authoritative protocol by which to harmonize the competing interests and principles that infuse s. 8 challenges predicated on information provided by confidential informants. Further, any theoretical concerns are here allayed by counsel's express acknowledgement of the sufficiency of the disclosure and judicial summaries to the defence exercise of its right to make full answer and defence on this motion.

B. AN INTRODUCTORY LEGAL FRAMEWORK

[8] Section 8 of the Charter protects everyone's "right to be secure against unreasonable search or seizure". The purpose of a "Garofoli review", as said in R. v. Reid, supra, at para. 75, "is to determine whether a judicial order, a warrant or authorization, can sponsor state activity that, without it, would offend the s. 8 guarantee against unreasonable search or seizure". (See also, R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 6-7.)

[9] The constitutional review of a warrant-authorized search may involve consideration of both the technical or "facial" propriety of the warrant and a determination of whether the contents of the underlying ITO afford the statutorily requisite reasonable and probable grounds – probable cause, as it is sometimes put – for the warrant's issuance. (As affirmed by Martin J.A. for the Court of Appeal in R. v. Debot, [1986] OJ No 994, 30 C.C.C. (3d) 207, aff'd. R. v. Debot, supra), the Canadian "standard of 'reasonable ground to believe' and that of 'probable cause', which is contained in the Fourth Amendment to the American Constitution, are identical: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.) The latter consideration, that of sub-facial validity, is the focus of this application. As put in Crevier, supra, at para. 66 (citations omitted),

[T]he issue on a Garofoli hearing is whether the minimum standard required for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search.

Applied to the immediate inquiry, the core question is whether the ITO sets out reasonable grounds to believe that the items sought by the police (including "controlled substances") as evidence of the offence of constructive drug trafficking were at Unit 1604 at 100 Maitland at the time the ITO was sworn and execution of the warrant sought: August 4, 2015.

[10] My function, as a reviewing judge, is not to decide whether I would have authorized the warrant on the basis of the impugned ITO or whether the warrant "ought" to have been granted. I am not to substitute my discretion for that exercised by the justice who authorized the warrant. Rather, I am to determine whether the issuing justice "could", not "would", have issued the warrant. (See R. v. Garofoli, supra, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 5.) If so, there is no breach of the Applicant's s. 8 rights. If, on the other hand, I find that no judicial officer could reasonably have issued the warrant on the basis of the ITO presented, then the claimed s. 8 violation is made out. If the alleged breach is established, I must then turn my attention to whether, pursuant to s. 24(2) of the Charter, the evidence seized upon execution of the improvidently issued warrant should be excluded from the Applicant's trial. As already noted, a defence-favourable s. 24(2) ruling terminates the prosecution.

C. THE CONTENTS OF THE INFORMATION TO OBTAIN (ITO), AS DISCLOSED AND SUMMARIZED

[11] Sometime in June 2015, the police received an anonymous "Crime Stoppers" tip regarding drug trafficking at Unit 1604 at 100 Maitland. The tipster claimed to have seen numerous persons attend at the unit. S/he felt unsafe because of these persons' unauthorized access into the building and their presence during elevator trips to the 16th floor. Some of the visitors enter Unit 1604. The tipster described the tenant in Unit 1604 as tall, male and white. S/he said he was "well known in the [gay] Village" as "the local drug dealer".

[12] A follow-up Crime Stoppers tip was received later the same month, during Gay Pride weekend (June 28-30, in 2015). The tipster reported that the earlier-described activity was continuing, with "a constant flow of in and out traffic" at Unit 1604 throughout the Pride weekend, and effectively invited the police to investigate.

[13] Police data base checks failed to identify the Unit 1604 tenant. Police attendance on the building's property management on July 21, 2015 proved equally unavailing, although management did authorize the police to enter the building to pursue their investigation.

[14] Two undercover officers were assigned to execute an opportunity drug purchase at Unit 1604 the next day, July 22nd. An unknown white male with salt and pepper hair answered when they rang the 1604 doorbell. The officers tried to purchase crystal methamphetamine. The man responded by asking the undercover officers how they knew about him. When provided with a fictitious "drop" name, the man refused to deal with the prospective purchasers unless the person said to have referred them called him or accompanied them on their return.

[15] Sometime after July 22nd, the ITO affiant (an experienced drug investigator) met with a confidential informant, identified as CI #1. This person has no criminal record, has never provided the police with information on the condition of preserving his/her anonymity in the past, and sought no form of compensation for the information s/he provided. CI #1's report is based on his/her direct observations, including the vantage point that allowed him/her a clear view of those entering the building and the floor they attended.

[16] CI #1 believed the tenant in Unit 1604 at 100 Maitland was selling drugs from his apartment. There was, the source advised, "a constant flow of persons entering and leaving unit #1604 at all times throughout the day". Their appearance ranged from "working class normal people to street people who look like addicts". They "usually go into the unit and leave approximately 1 to 2 minutes later". CI #1 was concerned for his/her own safety and that of other tenants in the building as a result of the traffic of strangers to Unit 1604.

[17] CI #1 described the tenant in Unit 1604 as a white man in his 50s to early-60s with grey/white hair. S/he detailed the living situation of the tenant, his employment claims and his/her own observation-based opinion as to the tenant's work habits. CI #1 also shared his/her knowledge of the approximate time frame in which tenant installed a doorbell under the peep-hole in the unit's door. The source also ventured his/her own opinion as to the reason for the installation of the doorbell.

[18] A "second independent confidential source", CI #2, also advised the ITO affiant that s/he believed the tenant in Unit 1604 was selling drugs from his apartment. Like CI #1, this second source had "firsthand knowledge of the information" shared with the affiant, had no criminal record, had not provided information to the police under a condition of anonymity in the past, and sought no compensation for his/her assistance. The affiant's conversation with this second source, CI #2, occurred between one and two weeks after his meeting with CI #1.

[19] According to CI #2, there was a constant flow of human traffic to Unit 1604 from afternoon to the late-night hours, with visitors staying inside the unit for only two to three minutes. The visitors included males between 18 and 20 years of age and well-dressed men between 34 and 45. Some appeared "very high". The source's observation-posts included riding the elevator to the 16th floor on a daily basis and seeing an array of different men exiting on the same floor and heading directly to Unit 1604. CI #2 provided details of a verbal exchange on one occasion between the Unit 1604 tenant and a person who appeared to be "tweaking" as he left the elevator and entered the apartment. (As the affiant explained, "tweaking" commonly refers to the appearance of someone experiencing withdrawal from methamphetamine.)

[20] CI #2 described the tenant in Unit 1604 as a 5'9" to 5'10" white man between 45 and 55 years of age. He had brown eyes, a goatee/moustache, and short salt and pepper hair.

[21] CI #2 knew of another person, otherwise unidentified, who had made similar observations pertinent to the investigation.

[22] As summarized by the affiant, the ITO strongly suggests that the two Crime Stoppers tips were made by the same person. I proceed on this basis. The ITO is silent, however, as to whether CI #1 and CI #2 knew each other. It is also silent as to whether either CI was responsible for submitting the Crime Stoppers tips.

[23] "Based on his previous experience and drug investigations", the affiant avers that the "steady flow of persons [to] an address for very short periods of time" is commonly characteristic of the sale of drugs from that address.

[24] The ITO was sworn on August 4, 2015 and the warrant, authorizing a search that day and the next, was issued the same day. It is undisputed that the warrant was also executed on August 4th.

D. ANALYSIS

(a) Introduction

[25] Unlike some Garofoli motions, the ITO at issue is not solely dependent on the allegations of confidential police informants. The police application for the immediate warrant, as set out in the ITO, rests on two planks. The first is the information collected through the police informants. The second is that generated directly by the police through use of undercover agents. Neither, in my view, is independently capable of meeting the requisite norm of probable cause. Considered on its own, that tendered by the informants never transcends a standard of suspicion. The undercover police investigation on July 22nd may support reasonable grounds to believe drugs were then being trafficked from Unit 1604. However, the police visit on that date would not itself afford, as required by s. 11(1) of the CDSA, "reasonable grounds to believe that" as portable and marketable a commodity as "a controlled substance "… is [still] in [the targeted] place" nearly two weeks after the single police attendance.

[26] Irrespective, for the moment, of the informants' credit-worthiness, absent reliance on the CIs' reports of a continuing flow of traffic to Unit 1604 after the police attendance and up to at least a very few days before the warrant's execution (if not even more proximate), the ITO would suffer from the vice of staleness. (For one recent judicial discussion of the doctrine, and the circumstantial flexibility of its application, see R. v. Munton, [2018] B.C.J. No. 646 (S.C.), esp. at para. 20-25, and the authorities there cited. See also R. v. Dodge, esp. at p. 354: "the information" put before a justice respecting the presence of a "narcotic" for which a warrant is sought, "must be current and appear to be current". And see R. v. Lewis, [1998] O.J. No. 376, 38 O.R. (3d) 540 (C.A.), at para. 15: "where the allegation relates to possession of narcotics, the totality of the circumstances must be such as to raise a reasonable probability that the target is in possession of the suspected contraband at the time of the arrest or search".)

[27] The reliability of the accounts of the police's own investigation is here unquestioned. That provided by the confidential police informants and anonymous tipster is not so easily vouched. It is the reliability of these informants and their allegations that are subject to the Debot "three-Cs" reliability analysis. Even if found sufficiently trustworthy, there remains the question of whether the information collected from the informants, when pooled with that attributable to police's own undercover investigation, objectively establishes those reasonable grounds necessary to issue the warrant.

[28] Approached somewhat differently, the information here provided by the confidential informants is not direct evidence of criminality. Neither CI #1 nor CI #2 asserts he or she observed drugs or other material evidence of crime. Neither informant claims to have directly witnessed the actual occurrence of a drug transaction. Rather, the two confidential informants speak of conduct from which they each infer that drugs are being trafficked from Unit 1604. The ITO affiant in effect asks the issuing justice to draw the same inference. The first concern, then, is whether there exists a sufficiently reliable evidentiary predicate for the invited inference of criminality. The second, as earlier noted, is whether that information (along with the fruits of the police investigation) meets the statutory prerequisite for authorization of the sought warrant – that is, as prescribed by s. 11(1) of the CDSA, that there are reasonable grounds to believe that there is evidence (a controlled substance) of a CDSA offence (here, constructive trafficking) at a place (100 Maitland Street, Unit 1604) at the time for which the judicial authorization for the search is sought (August 4-5, 2015).

(b) The "Three-Cs"

(i) Introduction

[29] Three autonomous sources cited in the ITO provide the informational foundation for the claim of probable cause. Two are the confidential human sources identified as CI #1 and CI #2. The third is the undercover officers' combined report of their exchange with the man who answered the doorbell at Unit 1604 on July 22, 2015. The latter report is of both independent and confirmational probative value. As earlier intimated, the report of the officers' attendance at the door to Unit 1604 could not itself support the issuance of the warrant. The reliability of the two confidential informants and the information provided by them is thus critical to the ultimate determination. As said by the Court of Appeal in R. v. Reid, supra, at para. 74:

It is essential that the reviewing judge base his or her decision on reliable information. In other words, the test or standard is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Araujo, [supra,] at para. 54.

[30] There is, in addition to the CIs and the undercover police, the information sourced on two occasions to a Crime Stoppers tipster. Indeed, the ITO affiant effectively invites the issuing justice to treat the tipster as a third confidential human source, and the justice may well have accepted the invitation. If so, I am reluctant to follow suit.

[31] I appreciate, as said by Doherty J.A. for the Court of Appeal in R. v. Lewis, supra, at para. 19, that, absent confirmation of non-generic claims, "information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search" (emphasis added). I also appreciate that the information supplied by the tipster at issue does not "stand alone". My concern is that the nature of the tipster's information, combined with his or her anonymity, renders it impossible to directly or inferentially distinguish him or her from the confidential informants. Accordingly, I am of the view that the safer course on this Garofoli application is to refrain from treating the tipster as an "independent" human source. While the Crime Stoppers tips expand and somewhat enrich the observation of suspect conduct afforded by the CIs, the reliability of the tipster – his or her antecedents, historical performance, and whether the information s/he reported was acquired first-hand or only, for example, through rumour – remains unknown. Nor are any distinctive elements of the tipster's accounts independently confirmed. At best, the tipster's reliability is equivalent to that of one of the CIs who may have been the person who placed the anonymous calls to the Crime Stoppers number – but even that is mere surmise.

(ii) Compellingness

[32] The question of whether the information conveyed to the police by a confidential informant is compelling rests largely on its detail, its specificity and the source of the informant's knowledge: ideally, direct or first-hand observation or incriminatory communication, as opposed to hearsay or gossip. Both CI #1 and CI #2 occupied vantage points that afforded them frequent opportunity to observe the flow of pedestrian traffic to the 16th floor and, in particular, Unit 1604. Their observations are first-hand, recurring and made from relatively close distance. They each describe, with very similar particularity, the physical features of the tenant in Unit 1604 and, if somewhat more generally, age, social and some sartorial characteristics of the many persons who they say attended that apartment. Each confidential informant also describes the dynamics of the interaction at the door to Unit 1604 and the brevity of each visit. CI #2's account also details the contents of a related verbal exchange between the Unit 1604 tenant and one of his visitors that is at least consistent with drug trafficking behaviour.

[33] The reports provided by the Crime Stoppers tipster, particularly the first, are nearly equally detailed but, on their face, far less compelling by virtue of the absence of any information respecting the source or directness of the observations reported.

(iii) Credibility

[34] Neither confidential informant had previously spoken to the police about suspected criminal activity. Accordingly, neither, had, as it sometimes put, a "track-record" for reliably assisting the police. That said, neither had a criminal record or any reported history of criminal involvement or outstanding charges. Their motives, I infer, in communicating with the police were benign or, at least, were not such as to invite scrutiny for self-advancement or other oblique purpose. The CIs did not apparently know let alone have any personal animosity toward the 1604 tenant. Neither sought any form of material compensation for their information. Neither sought any favour or indulgence from the police. Their assistance, like that of the Crime Stoppers tipster, appears animated by the annoyance and nuisance, and some element of fear, caused by the constant flow of sketchy strangers through the building as they made their way to Unit 1604. In the face of this unchallenged explanation, there appears no basis other than speculation to reason that any of the informants would, as put by the Court of Appeal in R. v. Lewis, supra, at para. 18, "have a motive to falsely accuse [a] person of a serious crime". While their credibility had not been previously tested, there is no serious reason to doubt the honesty of either CI and, thus, here no need to search for compensatory or alternative measures.

[35] As already noted, there is little if any basis to assess the tipster's credibility. His or her personal antecedents, criminal involvements, historical reliability and relationship, if any, with the tenant are unknown.

(iv) Corroboration

[36] The disclosure made by the confidential informants was almost exclusively concerned with the flow of strangers to Unit 1604. The nature of that traffic, as detailed by both CIs, and as embellished by one anecdote shared by CI #2, suggested that the tenant in 1604 was trafficking drugs from the apartment. As said by Rosenberg J.A. for the Court of Appeal in R. v. Rocha, supra, at para. 22, "The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required" (emphasis added). (See also, R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.); aff'd. 2008 SCC 65, [2008] 3 S.C.R. 451; R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673.) What is required, however, is something more than superficial confirmation of innocent or banal facts.

[37] The police efforts to confirm the information initially reported through Crime Stoppers was here something less than heroic. The police did not commence an investigation until at least three weeks after the second anonymous tip. Despite having management's authorization to enter the building to pursue their investigation, the ITO discloses not a single attempt by the police to confirm the claim of frequent traffic of strangers to the 16th floor, let alone these persons' attendance at Unit 1604. Nor is any explanation proffered for failing to conduct such surveillance. The police did search their files for inculpatory information about the apartment and its unknown tenant, but to no avail. They did try to persuade the property's management to share confidential information about the Unit 1604 tenant, but again without success. If they sought the confirmatory assistance of anyone within their regular stable of informers, no mention is made of it in the ITO.

[38] Nonetheless, the police investigation did generate evidence that, if indirectly, corroborated both the tipster's and the confidential informants' accounts. The CIs' reports of a persistent flow of transient traffic to Unit 1604 and the brevity of these persons' visits to that apartment strongly suggested that the occupant of Unit 1604 was selling drugs from that location. The police did not confirm the claims of heavy pedestrian traffic. However, undercover officers directly tested the underlying hypothesis by attending at the apartment and endeavouring to purchase drugs. The tenant – the police description of whom closely resembles that provided by both confidential informants and the anonymous tipster – did not sell the police any drugs. However, his response to the police entreaties, as detailed in the ITO, is patently consistent with that of drug dealer concerned to mitigate the risk of arrest when faced with unfamiliar customers. No alternative construction of this exchange, let alone one consistent with criminal innocence, presents itself, nor is one advanced by the defence.

[39] The undercover police conversation with the occupant of Unit 1604, as detailed earlier, is independently probative of that tenant's drug trafficking from that address. It is also confirmative of the central premise of the information shared by the CIs and the Crime Stoppers tipster. Put otherwise, the unchallenged police account of their exchange with the occupant of Unit 1604 enhances confidence in the validity of the disclosure made by the confidential informants and through Crime Stoppers. It is at least indirectly corroborative of the informants.

(v) Totality of the Circumstances

[40] Martin J.A., writing for the Court of Appeal in Debot, supra, discussed the importance of putting before an issuing justice sufficient information about the detail contained in and sources of an informant's tip, the reliability of the informant and police confirmation, if any, of parts of the informant's "story" to "enable[e] the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged" in an ITO. "I do not intend", he continued, "to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief" (emphasis added).

[41] On further appeal, Wilson J., writing for the Supreme Court on this point, effectively reframed Martin J.A.'s criteria for assessing the reliability of an informant's tip in terms of the "three-Cs" – compellingness, credibility and corroboration – that have since become the settled analytical formulation. Like Martin J.A., she did "not suggest that each of these factors forms a separate test". Rather, she wrote, "I concur with Martin J.A.'s view that the 'totality of the circumstances' must meet the standard of reasonableness." Importantly, she then added: "Weaknesses in one area may, to some extent, be compensated by strengths in the other two".

[42] The information gleaned from the police meetings with the CIs does not describe nefarious deeds, hidden stashes, secret enterprises or actual criminality. Rather, the informants simply share readily visible conduct in public areas of the same multi-unit building. This information reflects the CIs' close, first-hand observations over a matter of weeks. The informants' description of the pedestrian traffic and briefest of visits to Unit 1604 is consistent and detailed. While neither CI has a track-record for reliably assisting the police, neither was the subject of any unsavoury allegations nor had a criminal record or a history of personal animus towards the tenant in 1604. Neither CI sought or expected any personal benefit from his or her co-operation with the police or, on the record before me, exhibited any motive that his or her credibility suspect. Their reports of a flow of strangers making their way to the apartment is never directly confirmed by police surveillance. However, the inference they draw from this traffic – that the occupant of 1604 is a dealer from whom the frequent visitors are buying drugs – is substantially corroborated by undercover police work, as are, if less directly, the CIs' accounts of the stream of strangers bent on reaching Unit 1604.

[43] I am satisfied that a justice could readily treat the accounts of the two confidential informants as sufficiently reliable to factor them into his or her assessment of the statutory adequacy of the ITO. Any weakness that may attach to the "corroboration" consideration is, as expressed by Wilson J. in Debot, supra, "compensated by strengths in the other two" criteria.

(c) Reasonable Grounds to Believe

[44] "Reasonable grounds to believe" is a common, although not exclusive, threshold for the exercise of state authority to trespass on the otherwise protected rights of individuals. It is also the threshold for the exercise of a justice's discretion to issue a warrant authorizing one such trespass. This standard is not to be conflated with that which obtains at a trial. As put in R. v. Pires; R. v. Lising, supra, at para. 41:

We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization.

Wilson J.'s words are as applicable to CDSA warrants as they are to wiretap authorizations.

[45] To summarize, sometime in June 2015 the police received a detailed anonymous tip of conduct consistent with drug trafficking from Unit 1604 in a building at 100 Maitland. The police appear to have done nothing in response. A similar anonymous tip was brought to the attention of the police towards the end of the same month. The police began an investigation approximately three weeks later. Most significantly, on July 22, 2015 undercover officers presented themselves at the door to Unit 1604 in an effort to effect a drug purchase. They did not succeed in buying any drugs, but a reasonable, if not quite ineluctable, inference arising from the unchallenged report of their exchange with the occupant is that he was then engaged in drug trafficking from that apartment. The police did not then seek a warrant. Sometime after the police attendance at the apartment door, the affiant of the ITO met with a confidential informant, CI #1, who, in considerable detail, reported his or her first-hand observations of the persistent flow of human traffic to Unit 1604 and the very brief audiences granted visitors upon attending the apartment. Sometime between one to two weeks later, the affiant met with a second confidential informant, CI #2, who, along with some detailed and relevant embellishments, independently reported many of the same first-hand observations as had CI #1.

[46] As I have already indicated, the two confidential informants and their accounts are sufficiently creditworthy to reasonably ground belief in the content of the information they shared with the affiant. The police report of their verbal exchange with the occupant of Unit 1604 is both confirmative of the CIs' accounts of a pattern of drug trafficking-related conduct and independently probative of drug trafficking from that apartment on the day of their attendance, July 22, 2015. In my view, the consistency, independence and continuity of the information shared by the two CIs over the course of the following weeks (including very similar descriptions of the apartment tenant to that recorded by the undercover officers), and extending, effectively, to the eve of the warrant's issuance, affords ample reasonable grounds for a judicial officer to believe that drugs intended for sale were in Unit 1604 during the timeframe for which execution of the warrant was sought. Accordingly, there is no basis for me to interfere with the exercise of the justice's discretion or otherwise invalidate the warrant.

[47] I add only that the analytical challenge in this case is somewhat akin to that addressed by the Supreme Court in R. v. Plant, [1993] 3 S.C.R. 281. This issue in Plant was whether information provided by an anonymous tipster ought properly to have been considered by a justice of the peace in determining whether reasonable grounds existed to grant, as the justice did, a search warrant. The Court decided that the tipster's account was fit for such consideration. Sopinka J. concluded, at para. 28, that "the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant" (emphasis added). As explained by Doherty J.A. for the Court of Appeal in Lewis, supra, at para. 21:

Sopinka J. did not suggest that the tip, even as confirmed … could justify a search. He said that it could form part of the reasonable grounds needed for a search warrant. In Plant, the additional information which completed the reasonable grounds consisted of public utility records showing that four times the normal amount of electricity was used at the residence … [reflecting] levels of electrical consumption … consistent with the hydroponic growth of marijuana. The data … supported the tipster's allegation that the residence was being used to grow marijuana.

Similarly, in the case at bar, the information provided by the confidential informants does not stand alone. It is only in combination, contextually and temporally, with the police's own investigation that the requisite grounds for issuance of the warrant are satisfied.

E. CONCLUSION

[48] For the reasons recited, the application to find that the warrant authorizing the search of the applicant/defendant's apartment violated his rights under s. 8 of the Charter is dismissed.

Released on April 26, 2018

Justice Melvyn Green

R. v. Lilly, 2018 ONCJ 275

Case Summary