Court File and Parties
Ontario Court of Justice
Date: 2019-04-10
Court File No.: Toronto 18-15003894
Between:
Her Majesty the Queen
— and —
LD
Before: Justice Patrice F. Band
Ruling on s. 8 Charter Application – "Step 5 Garofoli"
Counsel:
- Mr. E. Gilman and Ms. A. Webb — counsel for the PPSC
- Mr. C. Zeeh — counsel for the Applicant
Decision
BAND J.:
I. Background & Procedure
[1] On a date in May 2018 (the "May date"), relying to a great extent on information provided by two confidential informants ("CI1 and CI2"), members of the Toronto Police Service applied for a CDSA telewarrant to search three locations believed to be associated with the Applicant: a residence in the GTA and a home in the GTA ("residence #1" and "residence #2", respectively) and a particular motor vehicle. The items to be searched for included powder cocaine, drug-related paraphernalia and proceeds of crime. Of central importance are the allegation that CI1 purchased powder cocaine from the Applicant sometime within two months prior to the May date and that police had found large quantities of drugs, including powder cocaine, when they searched residence #2 on a prior occasion.
[2] The next day, the warrant was issued, the searches were conducted and the Applicant was arrested. Over 800 grams of powder cocaine and other drugs were found in a bedroom believed to be his at residence #2. 185 grams of powder cocaine and a significant quantity of other drugs were found in the motor vehicle. $7,500 in Canadian currency was also seized. Nothing of interest was found at residence #1.
[3] Given the reliance on CIs, Appendix "D" of the Information to Obtain (the "ITO") is, not surprisingly, heavily redacted. The Applicant argues that the warrant as redacted could not have issued in relation to any of the locations due to insufficient grounds and that his s. 8 and 9 Charter rights have been violated. The main thrust of his argument is two-fold: there is an insufficient nexus between the alleged criminality and the locations to be searched and the information set out in the ITO lacks sufficient currency to make out the appropriate grounds to search any of the locations. Among the numerous cases filed, the Applicant relies most on R. v Herta, 2018 ONCA 927, R. v. Rocha, 2012 ONCA 2017, R. v. Woo, 2017 ONSC 7655 and other cases that express similar principles.
[4] Consequently, the Applicant seeks exclusion of all evidence found pursuant to s. 24(2) of the Charter.
[5] The Respondent argues that the warrant could have issued based on the redacted ITO and that it is not even a "close call." That said, in its materials and submissions, the Respondent indicated that it is prepared to proceed to Step 6 of Garofoli to defend it.
[6] The Respondent included the redacted ITO at Tab 2 of its materials. Also included, at Tab 4 of its materials, is an additional copy of the ITO with a proposed judicial summary of some of the redactions. [1]
[7] At the outset of the matter, I was advised of a number of things. First, the Respondent was not relying on information provided by "CI2" except to the extent that it might modestly corroborate CI1's. This was a slight departure from the Respondent's written materials. Second, the Respondent was prepared to make two partial "peel backs" to the redactions that had been made to paras. 14 and 16 of Appendix "D", at p. 44 – essentially, that the drug purchases CI1 said he made from the Applicant both occurred at separate times within 90 days of the May date. Third, there was agreement that the date on which a significant quantity of drugs was found pursuant to a search warrant at residence #2 was sometime in March 2017.
[8] In his materials, the Applicant indicated that he was seeking "disclosure or judicial summaries of information" with respect to a number of things: see para. 23 of his Notice of Application and Factum. As the voir dire began, the parties agreed that we found ourselves within Steps 1 and 2 of the Garofoli procedure and that we were focusing only on the redacted ITO found at Tab 2.
[9] Yet, in his submissions, counsel for the Applicant neither requested to have me assess whether the redactions left him unable to appreciate the nature of the deletions nor made submissions to assist me in possibly generating a judicial summary of the general nature of those deletions.
[10] After hearing submissions from both sides, I inquired about this. Applicant's counsel invited me to make my own inquiries over the lunch break. In my view, Steps 1-3 of Garofoli call on the parties to provide guidance to the reviewing judge in this regard, and for good reasons. So, I asked the parties whether an effort ought to be made over the luncheon recess to obtain more information regarding the following five redacted subject areas:
(i) CI1's criminal conduct, outstanding charges or record, if any;
(ii) CI1's motivation to provide information to police;
(iii) Number of times that CI1 has provided useful information to police, and when;
(iv) The two alleged purchases of drugs CI1 made from the Applicant; and
(v) Whether CI1 had ever provided information to police that was proven false.
[11] Applicant's counsel agreed that these were worthy topics and did not suggest any additional ones. Crown counsel agreed to make inquiries.
[12] After consulting with the Affiant and CI1's handler, Crown counsel felt able to respond only as follows:
(i) Nothing additional;
(ii) Nothing additional;
(iii) At least three times;
(iv) The time "window" has been narrowed to 60 days pre-warrant;
(v) The deleted passage reads "To my knowledge, CS has not provided information to the TPS." What is more, the Affiant, DC Bhogal, would testify that he left out the word "false" between "provided" and "information" and that this was a typo.
[13] On day two, DC Bhogal was called to give evidence on this point only. He testified as expected. He had intended to type the word "false." The omission was an error in the nature of a typo. While he had no notes about it, he had an independent recollection to that effect. He added that the sentence as drafted did not make sense in the context of the whole of Appendix "D" – particularly the prior references to past instances on which CI1 provided information to police which, as mentioned above, total at least three.
[14] Applicant's counsel declined to cross-examine DC Bhogal on this area. Crown counsel argued that the correction of such a typo is quintessential amplification. He also argued that it further bolstered the strength of the ITO as it added to the compelling and credible nature of CI1's information. He added that the issuing justice is presumed to have read the ITO carefully and intelligently. The discrepancy would have made it evident that there had been a typo. Applicant's counsel made no submissions.
[15] I believed DC Bhogal's testimony and I accept that correcting such a typo constituted proper amplification. Whether it buttresses the ITO as the Crown argues is another matter. As redacted, the ITO does not make it clear that CI1 provided information to the Toronto Police in the past. [2]
[16] The parties made their submissions on the basis of this record. That is, the Applicant made a facial attack on the ITO as redacted, subject to the few "peel-backs", clarifications and the minor amplification described above. In this way, we have jumped straight to Step 5 of Garofoli with little to no dispute among the parties as to the extent of the redactions made.
II. Legal Principles Regarding Warrant Review
[17] The test that a reviewing judge must apply in such applications was reiterated by Justice Watt in R. v. Sadikov, 2014 ONCA 72, at para. 84:
The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.
[18] The standard, also defined as "credibly-based probability," exceeds suspicion but falls short of balance of probabilities: ibid, at para. 81. If the issuing justice "could" have issued the warrant, the application must be dismissed. I must take a common-sense and holistic approach to this task: see Herta, supra, at para. 21.
[19] In this case, it is important to remind myself that "an ITO must establish that there is reason to believe that evidence will be found at the time the warrant is executed": see R. v. Woo, 2017 ONSC 7655 at para. 60. As Schreck J. indicates in Woo, the importance of this "currency" or "freshness" requirement was discussed by Trotter J. (as he then was) in R. v. Chen, 2007 ONCJ 177 at para. 18 as follows:
Numerous courts have held that an Information to Obtain a search warrant must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there [internal citations omitted]. [3]
[20] Because the primary information to support the warrant in this case was provided by CIs, I must turn my attention to "the three Cs" outlined by the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53:
Is the information about the commission of a criminal offence compelling?
Is the source of the information credible? and
Was the information corroborated by police investigation prior to making the decision to conduct the search?
[21] These terms were usefully explained in R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 at para. 35 (S.C.J.), where Justice Code wrote:
It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to supporting information uncovered by the police investigation.
[22] There is no rule that requires confirmation or corroboration of the very criminality of what the CI has witnessed or knows; this is because it can often be very difficult or even impossible for police to obtain such information: see R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451 at para. 25; see also Herta, supra, at para. 38.
[23] As the Court of Appeal wrote in R. v. Crevier, 2015 ONCA 619 at para. 107, a deficiency in one factor can be remedied, to some extent, by the strengths in the other two. As discussed in Herta, supra, at paras. 38-39, the purpose of the Debot criteria is to help determine the overall reliability of what a CI has told police; where there are weaknesses in the credibility assessment, there can be a higher need for good corroboration.
[24] It is also important to keep in mind that the three Debot factors are not separate tests. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness: see Debot, supra, at para 53. Also, an issuing or reviewing justice is permitted to draw reasonable inferences from the information available.
III. Analysis
[25] While I have concerns about the Debot criteria in this case, in my view, the warrant could not have issued in relation to the specific locations at issue at the specific time it was sought because the pertinent information presented in the ITO lacked the requisite degree of currency. The ITO leaves an inferential gap in this regard. That gap, according to the Respondent, can be spanned by appeal to principles found in case-law and propensity reasoning.
[26] First, drug dealers – at least mid-level ones – are sophisticated business people involved in a lucrative market that provides them with incentives to continue to participate in it even while on bail: see R. v. Pearson, [1992], 1992 3 S.C.R. 665.
[27] Second, mid-level drug dealers must hold inventory and, as explained by Hill J. in R. v. Sanchez (1994), 93 C.C.C. (3d) 357 at p. 370 (S.C.J.), "it is common knowledge from our experience with warrants to search that evidence relating to the offence may be discovered at premises under the control of one suspected to be complicit in the crime," including their vehicles and homes.
[28] Third, it is open to me to engage in propensity reasoning at this stage as follows: because significant quantities of a variety of hard drugs were located at residence #2 12-14 months prior to the information relied upon in this instance, I can infer that the Applicant was at least a mid-level drug dealer; in light of his sale of powder cocaine to CI1 on two occasions within two months of this warrant, I can infer that the Applicant has continued to be a mid-level drug dealer; mid-level drug dealers keep their inventory at places under their control, including their homes and cars; therefore, there are reasonable and probable grounds to believe that drugs or offence-related property would be found at those locations.
[29] Like the reviewing judge in Herta, I am placed at a distinct disadvantage in attempting to determine whether this warrant could have issued. In my estimation, at least 70% of the information that was provided by CI1 has been redacted. There is no information as to the length of the relationship between CI1 and the handler/Toronto Police. CI1's motivation is redacted; its nature and strength are completely unknown. Any information about CI1's criminal record or involvement in criminal activity is redacted. There are no details surrounding the pair of alleged drug buys – no date, no location, no specified quantity, no information as to packaging or other aspects of the transaction. While I am advised that CI1 has provided information leading to arrests and drug seizures on at least three occasions, there is no information as to when they took place or whether any of the information led to convictions.
[30] It is very difficult in these circumstances for me to meaningfully assess CI1's credibility. I acknowledge that it appears that police database checks and surveillance corroborate a good deal of CI1's information. But that effect can be exaggerated. First, what is corroborated is mostly biographical and banal information that would be known to many who are familiar with the Applicant: what he looks like, his nickname, his address(es) and the car he drives. Second, what is corroborated – much of CI1's unredacted information – represents only a small fraction of the information he or she provided.
[31] In these circumstances, it is difficult to say that any of the Debot criteria are made out to a robust enough degree to enable the central question – whether there was a credibly-based probability that there would be evidence at any of the locations at the specified time – to be answered in the affirmative.
[32] That said, the combination of information provided by CI1, police database checks and police surveillance accessible to me in the redacted ITO establish a strong connection between the Applicant and the three locations searched. The fact that he was required by a recognizance of bail to reside at residence #2 at the material time obviously strengthens that connection.
[33] I also acknowledge that there are factors that distinguish this case from Herta and Rocha, supra. In Herta, where the CI claimed to have seen the suspect with a gun within 48 hours of the warrant, the issue was not currency. I note that Fairburn J.A. stated very clearly, at para. 53, that "if [the address in question] had in fact been [the suspect's], it might give rise to the reasonable inference that [he] would secrete his rifle at his own place." In Herta, the absence of a compelling connection between the suspect and the location sought to be searched was a principal concern. Unlike in Rocha, here, the prior search provides some connection between the criminality and at least one of the residences the police sought to search.
[34] As currently redacted, CI1's allegation that he or she bought drugs on two occasions is a bald assertion. No details are accessible to me as to exactly when those buys were made – only that it was up to two months prior to date of the warrant. I am aware that, in his description of the "Compelling nature of the information provided by the CI," the Affiant states that the CI has "personally seen the Applicant in possession of cocaine very recently." Even if I were prepared to infer that the Affiant or CI1 was referring to the purchases, "very recently" is a subjective assessment that has no concrete markers in the ITO as redacted. In the alternative, if the Affiant is referring to the CI having seen the Applicant in possession of cocaine on a date other than either buy, there is no source information in the ITO that is accessible to me.
[35] As currently redacted, there is no accessible information as to where those buys were made – not even the city or neighborhood is identified. To the extent that the incomplete sentence at p. 44, para. 9 – The apartment is described – may tempt one to speculate that CI1 had attended the apartment, it is not clear to me that any such knowledge is first hand. The Affiant indicates that most of CI1's information is first hand.
[36] I am not prepared to engage in the type of propensity reasoning urged by the Crown or to fill in the gaps with case-law at this stage. Frankly, those approaches do too much work that the ITO should be doing given the limited scope of what constitutes proper amplification and the prior authorization requirement. The Affiant does not provide detail as to what, in his experience with drug traffickers, leads him to believe that evidence will be at the locations at the relevant time: see p. 39. CI1 does not express a belief about that either. In the absence of details surrounding CI1's two alleged drug buys – such as date, location and quantity – the Crown asks me to make too much of the results of the search of residence #2. That search took place 12-14 months before the material events and the charges against the Applicant stemming from it remain outstanding.
[37] In addition, as Backhouse J. noted in R. v. Henry, 2012 ONSC 251, at para. 39, "it is well known that drugs are highly portable and drug dealers move their drugs around to avoid detection." In that case, the failure to provide information as to when the CI's alleged drug buy at the suspect's apartment took place was "particularly serious."
[38] While I appreciate that this is not a bright-line mathematical exercise, and that it is the totality of the circumstances that matters, it is nonetheless useful to note that in Woo, supra, and the cases cited within it at paras. 60 and 67, gaps of three weeks, one month and four months were found to be problematic.
IV. Conclusion
[39] Having reviewed the heavily redacted material and the circumstances in their totality, I cannot find that there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of an offence would be found at the specified time and places of search.
[40] I would add that this case lends Fairburn J.A.'s words, at para. 25 of Herta, a quasi-prophetic quality: "where … the CI information is central to the grounds for belief, step six may have to be invoked in order to answer whether the warrant could have issued." In the post-Jordan era where court time is at a premium, prosecution services should give careful consideration to those words in similar cases.
[41] I would invite the Crown to address Step 6 of Garofoli.
Released: April 10, 2019
Justice Patrice F. Band
Footnotes
[1] I refer to Tab 2 and 3 of the Respondent's materials as this became short-hand for the different versions of the ITOs during oral submissions.
[2] At this stage, given my other concerns, this is of negligible importance.