Court Information
Ontario Court of Justice
Date: July 10, 2018
Toronto Region – Old City Hall
Court File No.: 18-15001868-02
Parties
Between:
Her Majesty the Queen
— and —
Sharrieff Malik Muhammad
Before: Justice H. Pringle
Heard on: April 5, 6, 10, 2018; May 11 and 25, 2018; June 15, 2018
Reasons for Judgment released in writing on: July 10, 2018
Ruling: Section 8 Garofoli Application
Counsel:
Ron Krueger — counsel for the Crown
Barry Plant — counsel for the accused
PRINGLE J.:
OVERVIEW OF THE APPLICATION PROCESS
[1] Sharrieff Muhammad faces various firearms and drug possession charges, and has elected trial in the Ontario Court of Justice. These charges arose as result of a search warrant executed at 150 Dan Leckie Way, unit #1701, on July 16, 2017. After completing the search, police seized a semi-automatic .45 calibre model 1911 Dan Wesson handgun, eight rounds of .45 calibre ammunition, a firearm magazine, 5 rounds of .40 calibre ammunition, 3.33 grams of Acetylmorphine and Fentanyl, 4.42 grams of cocaine, and $860 in cash.
[2] On March 5th, 2018, the applicant served notice of a section 8 Charter application. He sought exclusion of all evidence seized, pursuant to this warrant, from the evidentiary record at trial. A co-accused, jointly charged, did not participate in this application.
[3] The Information to Obtain (ITO) underlying the search warrant was sworn by D/C Chris Miller. Substantively, this ITO rested heavily on confidential source information. Its contents were heavily vetted prior to disclosure, to protect the identity of the sole confidential source (CS). Accordingly, the ITO in defence counsel's possession provided no insight into the warrant's evidentiary basis. The applicant's initial written s. 8 Charter application reflected the fact that he had to guess at the ITO's contents.
[4] The respondent cross-applied, pursuant to step six of Garofoli, for the Court to consider the application based on the unredacted ITO. In doing so, Mr. Krueger conceded the redacted ITO could not support the warrant. We began the step six process, guided by R. v. Crevier, 2015 ONCA 619. A Crown summary, drafted and re-drafted four times, was provided to the defence and the court. The Crown edits were reviewed by me, following thorough submissions on the task of judicial editing.
[5] A judicial summary of the unredacted ITO was prepared and provided to the Crown. I invited submissions on this draft judicial summary, but the Crown was content to disclose it without further argument. The defence, upon receipt, did not argue the summary was insufficient to make full answer and defence. An application to cross-examine the affiant was abandoned. Instead, on consent of both parties, a series of questions for the affiant, and his responses, were filed as evidence.
[6] The Garofoli process began over again. Because the applicant's original application was based on the heavily redacted ITO, arguments had to re-formulated, in writing, based on the judicial summary. I pause to note here that the step six process, as unwieldy and time-consuming as it was, was eased in this case by Mr. Krueger's and Mr. Plant's hard work. The time invested and professionalism brought to this task, by both counsel, has served the administration of justice well.
CONTENTS OF THE INFORMATION TO OBTAIN
[7] Pursuant to the respondent's Step Six application, I have relied on the unredacted ITO as my evidentiary basis on the s. 8 application. These reasons, however, must maintain confidential informant confidentiality and, despite relying on the unvetted ITO, I continue to refer to its contents in summarized form.
ITO: Appendices A and B
[8] The warrant sought judicial authorization, pursuant to section 487 of the Criminal Code, to enter and search the premises at 150 Dan Leckie Way, unit #1701 between July 16th and 18th, 2017. Appendix A outlined items to be searched for, including firearms and evidence of firearm possession such as ammunition, magazines, and documentation. Appendix B set out the offence being investigated and, more particularly, firearm possession.
ITO: Appendix C
[9] In Appendix C, the affiant asserted his belief that a firearm was currently located inside unit #1701 at 150 Dan Leckie Way. He set out background information about the target address, details of the items sought, his own background, and his reliance on information provided by other police officers. At paragraph 13, he stated "[m]y investigation into this matter includes speaking to police officers, reading police reports, corroborating information provided by Confidential Source(s) and conducting (or causing to be conducted) various investigative techniques and physical surveillance".
[10] The affiant explained the various database systems relied on in the warrant. A CPIC check had provided a physical description of Sharrieff Muhammad and an address of 157 First Avenue in Toronto. Other database checks were done, revealing several police occurrences that were described in the ITO. These were:
On April 30, 2017, the applicant and another male were stopped by police who believed the applicant was breaching a house arrest condition. The applicant was released unconditionally when police discovered the conditions were no longer valid;
On April 22, 2017, a 911 call about a male with a gun was received. The description of this male included that he was white, which Mr. Muhammad is not, and was known as "Jacob". A witness interview linked the applicant running in the location of the shooting at the relevant time, and while in the company of a male named Jacob Gonsalves;
On May 29, 2016, Mr. Muhammad's mother reported someone shot into her residence at 157 First Avenue, killing the family cat. At the time, she lived with five of her children, but not including the applicant. The applicant, who had lived there for years, moved in with his father after rocks were thrown at their home;
On July 3, 2015, the applicant was involved in a swarming where one of the victims was stabbed and suffered a cracked rib. He was charged with Robbery, Aggravated Assault, and Conspiracy to Commit an Indictable Offence;
On June 9, 2016, a search warrant was executed at 150 Dan Leckie Way, unit #1701, as it was an address associated to Sharrieff Muhammad and his brother Kareemallah Muhammad. No one was found in the residence at the time;
On August 2, 2013, Sharrieff Muhammad ripped a cell phone out of the hands of a female and was charged with Robbery.
[11] The affiant concluded this appendix with an overview of why he believed firearm(s) would be located at 150 Dan Leckie Way, unit #1701. Appendix C ended with these two paragraphs:
As seen above, Sharieff MUHAMMAD has a fairly lengthy criminal past given the fact that he is still relatively young. Most of his involvement with police has been violent occurrences often while armed with a weapon.
Given the compelling information provided by the Confidential Source, as seen in Appendix "D", which has been mostly corroborated, I believe that Sharieff MUHAMMAD is in possession of a firearm and is using the address of 150 Dan Leckie Way Unit #1701 as a "stash house".
[12] As stated above, the ITO largely relied on one confidential source. Appendix D laid out the details of the information he/she provided to police, as well as his/her relevant background.
ITO: Appendix D
[13] The final appendix compared aspects of the Debot criteria to this CS and the information provided. Under "Reliability", the affiant asserted the CS was reliable because she/he was embedded in the criminal underworld. She/he was thus well-positioned to get information about criminal activity. The CS was a registered Confidential Human Source with TPS. In the past, the affiant disclosed, this confidential source had given first-hand information to police. More particularly, the CS provided the identities of people involved in criminal offences in the Vanauley Walk area.
[14] Under "Motivation", the affiant disclosed that this CS sought a benefit for providing information in this case. He/she was warned that providing false or misleading information would disqualify him/her from receiving this benefit.
[15] Under "Compelling Nature of the Information Provided by Confidential Source", the affiant stated the CS's information was obtained through first-hand observations and knowledge. The CS provided the address used by the accused, including a unit number. Information provided about the accused's possession of a firearm, in particular, was first hand and detailed.
[16] Finally, under "Positive Features of Confidential Source", the affiant stated:
Much of the information provided by the Confidential Source has been confirmed and corroborated by police records and surveillance.
Under "Negative Features of Confidential Source", a negative feature was disclosed in the unvetted ITO. It could not, in the Crown's view, be summarized further without compromising CS identity. This negative feature was not, however, providing false or incorrect information to police in the past.
[17] The next paragraphs revealed specific information, from the source, about his/her first-hand contact with a male named "Casper". The date of this interaction was summarized as being within the past six months, and was specified in the unvetted ITO. The ITO fully set out the detailed context of this contact with Casper. Sharrieff Muhammad's use of the nickname "Casper" was corroborated both through police records and the affiant's own experience with him.
[18] The CS provided 150 Dan Leckie Way, unit #1701, as an address used by Casper. Sharrieff Muhammad's connection to this address was noted as corroborated in police records, albeit not as a known place of residence. This corroboration was that in June 2016, a search warrant was executed at 150 Dan Leckie Way, unit #1701, and Sharrieff Muhammad was one of that warrant's targets. Elsewhere in the ITO, the Justice of the Peace was fully advised of the applicant's residential connection to addresses other than 150 Dan Leckie Way.
[19] The CS provided detailed, specific information about Casper's possession of a firearm or firearms on this occasion, including the location of his possession. This location could not be summarized further without compromising CS identity. I thus permitted two hypotheticals to be argued in relation to this location –that the firearm was possessed inside the residence, or outside the residence but on Casper's person. Either way, the Justice of the Peace was fully advised of the basis for the CS's belief.
[20] The CS, familiar with firearms him/herself, believed the firearm(s) she/he saw to be real. While the CS believed that Casper possessed firearm(s) because he was in conflict with a Regent Park gang, the source of that belief went unexplained. More particularly, the ITO did not disclose whether the CS's belief was based on rumour or obtained first-hand.
[21] The CS asserted his/her belief that #1701-150 Dan Leckie Way was a stash house for drugs and guns. I permitted two hypotheticals to be argued about the basis of this belief – that the CS learned it first hand, or the CS based this on hearsay. Either way, the Justice of the Peace was fully advised of the basis for the CS's belief.
[22] The CS provided detailed, firsthand information about Casper and his associates committing multiple criminal offences. I permitted two hypotheticals to be argued on this point – that these offences included firearm possession offences or that they did not. Either way, the Justice of the Peace was fully advised of the nature of these offences.
[23] Three corroborative sub-bullets were included, by the affiant, in reference to this detailed tip about Casper and his associates committing multiple criminal offences. First, the source corroborated that Casper was Sharrieff Muhammad by identifying a photo of him as "Casper". Second, police records corroborated that one of the persons, identified by the CS as Casper's associate, did have a peripheral connection to the applicant. Finally, police records corroborated that the named associates were connected to the specific type of criminal activity alleged by the CS. That corroboration, at this part of the ITO, did not extend to the applicant himself.
[24] On a second occasion, the CS gave additional information about an encounter with Casper. Again, these observations were firsthand and the unvetted ITO fully disclosed the details of this encounter to the issuing Justice of the Peace. The CS had seen Casper in possession of cocaine for the purpose of trafficking, and in physical possession of firearm(s). These observations were summarized as being within the past six months, and were temporally specified in the unvetted ITO.
[25] Again, in order to protect CS identity, the location where Casper possessed firearm(s) could not be disclosed. The defence was able to argue that the firearm(s) were seen in the target address or outside it but on Casper's person. Finally, during this encounter the CS obtained information connecting Casper to the street "Dan Leckie", albeit not to a unit number. In a sub-bullet, the affiant attested that he believed "Dan Leckie" to refer to 150 Dan Leckie Way, unit #1701.
[26] Finally, the CS provided more information about Casper, his associates, and firearm possession. This information was very detailed. However, the unvetted ITO did not reveal whether this particular information was obtained first-hand or through rumour and gossip.
[27] Appendix D concluded with the sub-title "Information Relevant to the Source's Credibility". This section disclosed whether the CS had a criminal record. Because the Crown maintained they could not even disclose whether the CS had a criminal record, or not, I resolved this issue by permitting two alternatives to be argued. The defence could argue either the CS had no criminal record or, adapting the language from R. v. Sutherland (2000), 52 O.R. (3d) 27 at para. 11, that the source has a criminal record, the contents of which could be described as a negative credibility factor. In either circumstance, the Justice of the Peace was fully informed, by the affiant, about the presence or absence of any criminal record.
[28] Finally, my judicial summary added this to the record available to the applicant:
Where continued vetting is necessary to protect CS identity, reading this summarized ITO as a whole should communicate the following in order not to mislead the reader:
The vets do not disclose any connection between the past search warrant executed at 150 Dan Leckie Way unit #1701 and the Confidential Source. More specifically, there is no indication this source was relied upon on that past occasion.
The vets do not disclose any surveillance being done in this investigation.
The vets do not disclose the Confidential Source having been relied upon in any past investigation, except where specifically summarized. To be clear, there is no indication of any past performance record, either positive or negative, in relation to information provided by this Confidential Source.
[29] These additions informed the applicant of omissions on material issues, to ensure he was not misled by his inability to read the whole ITO as I had. I drew authority to make these comments from R. v. Lowe, 2018 ONCA 110 at para. 50.
[30] Finally, certain sentences could not, in the Crown's view, be meaningfully summarized without disclosing CS identity. I could not find a balance in my own summary for these sentences, either. As a result the Crown was not allowed to rely on those portions upon review: see R. v. Reid, 2016 ONCA 524 at para. 86. The sentences are found in the judicial summary at Appendix D, page 8.
THE AFFIANT'S QUESTIONS AND ANSWERS
[31] As stated above, the Crown and defence filed questions answered by the affiant in writing. Upon filing this document as Exhibit 5, and after receiving the judicial summary, Mr. Plant abandoned his application to cross-examine the affiant viva voce.
[32] Since the parties agreed to make this part of the evidentiary record, I have included it as amplification in the Garofoli application. Relevant questions and answers include:
In answer to question 9, which queried why outcomes of the various occurrences were omitted from the ITO, the affiant replied that "A CPIC check revealed that the Applicant did not have a criminal record".
In question 11, the applicant sought an explanation for why the ITO characterized him as having "a fairly lengthy criminal past" and that "most of his involvement has been violent occurrences often while armed with a weapon". The affiant, through the respondent, replied that his "past knowledge of the Applicant as well as his Database Queries caused him to believe the Applicant was involved in the Project Originals criminal street gang (see DC Katafigiotis's report, above) and associated with persons with criminal records and guns. The Applicant's brother had been arrested in the past with a gun. The Affiant is clear that the Applicant did not have a criminal record.
In question #17, the applicant asked "As to #1701, was any surveillance done of the premises?" and the affiant's answer was "No".
The applicant asked "Who is the registered tenant/owner of the premises"? The affiant replied, "The tenant's name is Amanda Edwards; she signed the lease on October 21, 2013, however her driver's licence was changed to #1701-150 Dan Leckie Way on March 20, 2018. Police had information that her previous address was at 174 Grange Avenue, in the Vanauley Walk area of Toronto". In answer to question #20, "was this known to the Affiant", the affiant/respondent replied "No, not when he swore the ITO".
GUIDING LEGAL PRINCIPLES
[33] My starting point, on review, must be that this warrant is presumptively valid. It is the applicant's onus to show the warrant could not have validly issued. As our Court of Appeal held in Crevier, supra at para. 66:
…the 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: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168.
[34] As stated in R. v. Jacobson, (2006), 209 O.A.C. 162 at para. 22, "[t]he standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued".
[35] A Garofoli application is an evidentiary hearing on admissibility, not a trial: see R. v. Crevier, supra, at para. 64. Finally, I again remind myself the onus rests on the applicant to discharge the presumption of validity and demonstrate the warrant could not have issued.
[36] My record on review includes the unredacted ITO, minus excisions, as well as the affiant's written answers to defence counsel's questions. I must approach this record and ask – on the record before the authorizing justice, as amplified on review, could she have issued the warrant? It matters not whether I would or would not have issued it. The question is only whether there is a basis upon which the warrant could have issued. This is not a high analytical threshold.
EXCISION VERSUS VITIATION
[37] The applicant's submissions challenged the accuracy of parts of the ITO. Indeed, as discussed subsequently, the Crown fairly conceded that some phrases used in the ITO were factually incorrect. He conceded the two references to surveillance being conducted in this case were wrong. No surveillance was attempted in this case. The affiant also incorrectly described the applicant as having a "lengthy criminal past" which mostly included "violent occurrences often while armed with a weapon".
[38] The parties disagreed on whether such misstatements should be excised or whether they, along with the "bad character" occurrences, were so subversive of the process that they grounded a section 8 breach. I agree with the Crown that the proper judicial response, to these misstatements, is excision. I am bound by R. v. Crevier, supra, at para. 74 where our Court of Appeal said "Any errors and inaccuracies in the ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith". At para. 75, the Court held that:
An accused might also argue, for example, that statements in the ITO describing police observations of hand-to-hand drug transactions between the accused and others are inaccurate because of evidence led showing that the accused was in another jurisdiction at the time these observations were allegedly made. Such inaccurate statements would be excised and would not be considered in determining whether the warrant could have issued. The Crown, however, may be able to amplify the record by introducing evidence that police made the observations on a different date and that the ITO affiant, acting in good faith, mistakenly provided the wrong date in the ITO.
[emphasis added]
[39] Material misstatements or omissions may indeed be so subversive of the warrant process as to vitiate a warrant: see R. v. Morris (1998), 134 C.C.C. (3d) 539 at p. 553 (N.S.C.A.). In my view, the misstatements in this case do not rise to that level and the remedy must be excision: see also R. v. Bisson, [1994] 3 S.C.R. 1097 at para. 2.
[40] The two references to surveillance / corroborative surveillance, which occur at Appendix C, paragraph 13 and in Appendix D under "Positive Features of the Confidential Source" are excised from the record on review. The reason for this specific excision is that there was no surveillance done in support of this warrant application, corroborative or otherwise.
[41] The phrases "fairly lengthy criminal past" and "most of his involvement with police has been violent occurrences often while armed with a weapon", at Appendix C, paragraph 52, are also excised. These statements were made in reference to the multiple occurrences described in the ITO. Yet the applicant has no criminal record and the occurrences hardly bear out the phrase "often while armed with a weapon". The respondent has conceded these phrases were "colourful" and inaccurate.
[42] The applicant argued that inclusion of these occurrences showed the affiant's pre-occupation with painting him in a negative light. In the full context of this ITO, I respectfully disagree that including these paragraphs served only a bad character purpose. I adopt the ratio of Green, J. at paragraphs 32 and 33 of R. v. Bernabe, 2014 ONCJ 628, where he characterized the inclusion of such occurrences as a matter of weight:
Accordingly, the information regarding the applicant's prior misconduct is potentially corroborative, if abstractly, of the CS. However, common sense suggests that the weight to be assigned such evidence, particularly that related to allegations of prior criminality, depends on the reliability of its source, its recency, whether the earlier allegations resulted in convictions and their nexus to the current accusations. "A background of driving offences, for example, has little relevance to drug trafficking": per Wilson J. in Debot, supra.
Subsequent dicta emanating from the Court of Appeal reflect these same and similar concerns. For example, in R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), Doherty J.A. (writing in dissent, but undisturbed by the majority on this point) observed, at para. 74, that, unlike a criminal record, a mere "list of [the accused's] other 'contacts' with the police had no probative value".
[43] Assessing these occurrences was, in my view, a matter of weight for the issuing Justice of the Peace. However, combining the details of these occurrences, while omitting the fact that the applicant had no criminal record, caused phrases like "fairly lengthy criminal past" and "most of his involvement with police has been violent occurrences often while armed with a weapon" to be misleading. Both phrases suggest a relevant, proven criminal history that does not exist.
APPLICATION OF THE DEBOT CRITERIA
[44] Because the heart of this warrant rested on CS information, my analysis must be guided by Wilson J.'s ruling in R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a 'tip' originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the 'totality of the circumstances' must meet the standard of reasonableness. Weaknesses in one area may to some extent, be compensated by strengths in the other two.
Is the Information Compelling?
[45] In applying the Debot criteria, Code J. in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, explained the distinction between compelling and non-compelling information at paragraph 40:
In terms of analyzing whether the informer's tip was compelling … a detailed tip, based on first hand observations that are reasonably current, has generally been regarded as compelling in the case law. On the other hand, a vague or conclusory tip, based on second hand hearsay that is not reasonably current, would obviously not be compelling. As Rosenberg J.A. put it in R. v. Rocha, supra at para. 28:
Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent's brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of conclusory statements or mere rumour or gossip: R. v. Debot, at 1168-69.
[46] In the case at bar, the information provided by the CS was extremely compelling. The Justice of the Peace was in possession of detailed, specific information that the CS, on two different occasions, saw the applicant in possession of a firearm or firearms, as well as in possession of cocaine for the purpose of trafficking on one of those occasions.
[47] Although I had to invite the defence to argue two hypotheticals on the location of these two acts of possession, the Justice of the Peace was fully informed of the circumstances under which the CS made his/her observations of possession. She was also told the context in which the contact took place. On either hypothetical, that being in physical possession of firearm(s) outside the residence or possession of firearm(s) inside the residence, the CS's information remained compelling.
[48] The Justice of the Peace knew the specifics of the observations, including date(s), which was judicially summarized as within six months. The Justice of the Peace also had the affiant's opinion, based on his experience, that people who go to the expense and trouble of securing a firearm are "seldom without one" because they have an ongoing need for that firearm. This lent currency to the grounds and was an opinion available for the Justice of the Peace to accept.
[49] Most importantly, the information provided by the CS about firearm possession was obtained first-hand. While the source of other pieces of information the CS provided were unknown, this was the most salient piece of information in the ITO. This was the result of first-hand knowledge. This was the key to assessing whether information is compelling or not. In the case at bar, it clearly was.
Is the Informer Credible?
[50] The credibility of the informer, in Greaves-Bissesarsingh, supra, suffered from weaknesses that echo in the case at bar. Code J. explained these weaknesses and the resulting impact on his Debot analysis at paras. 37 through 39:
Beginning with the informer's 'credibility', it was frankly disclosed that he/she had no past history of providing reliable information to the police. This factor, standing alone, is not fatal. There are well-known and authoritative cases where completely anonymous tipsters simply call "Crime Stoppers", without any past record of reliably informing, and where their tips have nevertheless been found "compelling". These anonymous but "compelling" tips, supported by some corroboration, have also been held to constitute "reasonable and probable grounds". See: R. v. Plant (1993), 84 C.C.C. (3d) 203 at 215-217 (S.C.C.); R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.). In other words, weaknesses in the 'credibility of the tip, due to a lack of any proven track record, can be overcome by strengths in the other two criteria.
The informer's 'credibility' in the present case was further weakened by his/her admittedly self-interested motivation and by his/her criminal lifestyle. Once again, these are not uncommon attributes of confidential informers and they too are not fatal, standing alone.
For the above reasons, the informer's tip was weak, in terms of the 'credibility' criterion, and could only rise to the level of reasonable and probable grounds if it was 'compelling' and if there was some 'corroboration', as those terms are understood in the case law.
[51] In Lowe our Court of Appeal confirmed the applicability of these factors to the credibility component of Debot. There, the Crown amplified the record "to include information that the CS had been used twice in the past. The amplification did not, however, give any indication as to how the reliability of these additional tips had been assessed": R. v. Lowe, supra, at para. 55. The trial judge in Lowe correctly found the credibility element was weak.
[52] In the case at bar, the respondent relied upon the fact that the CS was registered with police as an informant. The respondent submitted credibility was established because the CS previously gave first-hand information about the identities of people involved in crime in the Vanauley Walk area. Without information about the CS's past track record, however, this was not instructive on the issue of credibility. We do not know whether the past information led to arrests, or charges, or evidence seizures, or otherwise substantiated as being reliable information. The fact that he/she gave past information, the outcome of which is unknown, does not imbue the CS with credibility.
[53] This CS sought a consideration for information provided. The Justice of the Peace was advised of the nature of this consideration. While the CS was embedded within the criminal element in Toronto, this factor can militate against credibility: see R. v. Graves-Bissesarsingh, supra, at para. 38. It can also bolster credibility: see R. v. Rocha, 2018 ONCA 84 at para. 24. In the case at bar, frankly, the only positive credibility feature was the fact that this CS was embedded in a criminal lifestyle and well-positioned to learn this type of information.
[54] The Justice of the Peace would have been aware of all of these factors. She was also fully aware of the details of the "negative feature" of the confidential source. This "negative feature", in combination with all other factors but particularly the untested nature of the CS, leads me to conclude that the CS's credibility was weak. This must have been apparent to the issuing Justice as well.
Is the Information Corroborated?
Corroborative Information in the ITO:
[55] The main aspects of corroboration in this ITO are:
The CS identified Sharrieff Muhammad as "Casper" and the affiant knew, from his experience with Sharrieff Muhammad, that his nickname was "Casper";
The CS said #1701-150 Dan Leckie Way was used by Casper, and the affiant knew that one year ago, Sharrieff Muhammad was associated to that address somehow, since he was a target of a search warrant there;
The CS said he saw the applicant and his associates committing multiple criminal offences. Police records indirectly corroborate that these associates could be involved in the crime(s) specified. Police records also show one of the persons identified as the applicant's associate, to have a peripheral connection to the applicant, and;
Some of the information from the database checks, such as the shooting at the applicant's family home one year prior and being in the company of a person reported to be in possession of a gun.
Defence Position on Corroboration:
[56] The applicant argued that none of the above factors were not truly corroborative. For example, he submitted that knowing the nickname "Casper" was not corroborative. Apparently the applicant's rap name is "Casper" and he enjoys a significant Youtube following under this name. But this did not form part of the evidentiary record and I cannot consider it. Even if I could, the availability of an alternate source of knowledge for the nickname would not void it of corroborative value.
[57] The defence also argued that the prior search warrant was not corroborative, since the applicant was not at #1701-150 Dan Leckie Way when the warrant was executed. Respectfully, I disagree. The point of including this information was to show some link between this address and the applicant one year prior. Certainly, it would have been better if the affiant had explained how, exactly, the historical warrant had linked the applicant to that unit and address. But it remains a link, albeit a weak one because of the lack of detail, in the police records.
[58] Again, this information was a matter of weight. The Justice of the Peace could assess the weight to be given this factor, if any. She was also fully informed of the fact that the applicant had lived at a different residence, with his mother, for many years and then moved in with his father somewhere else.
[59] The applicant submitted the database checks had no corroborative value and were "put into the ITO to improperly cast the Applicant in a false, negative light": supplemental Factum, para. 27. I respectfully disagree with this argument. Some of the database checks indeed lack probative value – for example, the applicant's 2013 arrest for robbing a female of her cell phone. Other occurrences, however, did have corroborative value to the CS's assertion of seeing the applicant in possession of a gun.
[60] For example, an occurrence from April 22, 2017 linked the applicant to the location of a shooting and to a person named Jacob with a gun. The May 29, 2016, shooting inside the applicant's family home, although the applicant did not live there at the time and it occurred a year prior to the search warrant, was a possible motive for the applicant to possess a gun. These occurrences are not particularly strong pieces of corroboration, but neither were they entirely without value for the Justice of the Peace.
The Crown Position on Corroboration:
[61] The respondent argued, at paragraph 17 of his supplemental factum, that:
It would be impossible for the police to corroborate the key first-hand observation: that the Applicant had a gun which either could be at his apartment or on his person. Some of the CI's information was corroborated by police. It was well within the preview of Justice of the Peace Glover to decide that the information was so compelling that minimal corroboration was acceptable.
[62] I agree that direct corroboration of firearm possession was likely impossible. Corroboration is not limited to direct corroboration of the commission of an offence. See, for example, R. v. Rocha, supra at paras. 22 through 24, where the Court of Appeal for Ontario held:
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. In a very short judgment in R. v. Caissey (2009) 3 SCR No. 451, the Supreme Court of Canada said the following:
The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.
In the Alberta Court of Appeal, the majority described the independent confirmation as: 'the police independently confirmed a number of details, including the identity of the respondent and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle' R. v. Caissey, 2008 ABCA 380 at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant's apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.
In this case, the police had confirmed the address and layout of the interior of the restaurant and the involvement of the respondent and his brother in the restaurant. While not as compelling as the independent confirmation in Caissey, this information could not be disregarded.
[63] In the case at bar, the affiant believed, based on the CS's information, that the applicant was using unit #1701 as a stash house for drugs and guns. The applicant would have reasonably been expected to go there. As the respondent acknowledged, no corroborative surveillance was attempted. There was no effort to see if the applicant was on the lease, or if the lessee had connections to the applicant.
[64] The Garofoli process is not about what police could have done better, and the above comments are not directed toward that purpose. I simply cannot agree with the respondent's submission that the only way police could know if the applicant was in unit #1701 was to get a warrant and go inside. There were other corroborative options available.
[65] In any event, I agree with the characterization of corroboration in this case as "minimal". There was some corroboration, but it was weak.
Excisions and Corroboration:
[66] The evidentiary excisions are relevant to my assessment of corroboration, as well. At paragraph 13, the affiant described his role in the investigation as including conducting, or coordinating, surveillance. While the body of the ITO contained no specific references to surveillance, the affiant's sworn evidence was that it had been done.
[67] Subsequently, under a heading entitled "Positive Features of Confidential Source", the affiant stated that much of the CS's information had been "confirmed and corroborated by police records and surveillance".
[68] Similarly, the affiant's depiction of the applicant's "fairly lengthy criminal past" as mostly including "violent occurrences often armed with a weapon", was obviously used to corroborate the affiant's stated belief that, based on the CS, the applicant was in possession of a firearm.
[69] These misstatements, relevant to corroboration, were before the issuing Justice of the Peace. They have now been excised from the record on review. Both Crown and defence expressed theories as to how and why those misstatements were made. At this stage, I make no findings on that topic.
[70] Looking at all the corroborative aspects in this ITO, cumulatively, I find that corroboration of the CS's information was weak.
WEIGHING THE DEBOT FACTORS
[71] The Crown's factum asserted that the tips were so compelling that it overcame the minimal corroboration. The CS's information was indeed compelling. But the compelling nature could not compensate for the weakness to both credibility and corroboration.
[72] Certainly, the compelling nature of the CS's information could lead to the inference that evidence of firearm possession would be found at the residence. But on the totality of all the circumstances, including the weaknesses in credibility and corroboration, such an inference would not be reasonable: see R. v. Debot, supra at para. 53.
[73] On the record before me, I find the ITO was insufficient to support issuance of the warrant, and that the warrant could not have issued on this evidentiary basis. The applicant has discharged the presumption of validity and established a breach of s. 8 of the Charter. Section 24(2) may be argued by the parties at the next scheduled court appearance, or on another mutually-agreeable date.
Released: July 10, 2018
Signed: Justice Heather Pringle