R. v. Mirzoyan, 2019 ONCJ 55

CITATION: R. v. Mirzoyan, 2019 ONCJ 55

DATE: February 4, 2019

Ontario Court of Justice

(Toronto Region)

R v Haygaz Mirzoyan

Ruling on Evidence to Exclude Evidence on Basis of Unreasonable Search or Seizure

Heard: 1 Feb 2019; Judgment: 4 Feb 2019

(57 paras.)

Counsel for Applicant: John Struthers and Ashli Pinnock

Counsel for Respondent: Kelvin Ramchand and Amanda Webb

Libman J.:

[1] A confidential informant, registered with the police, alerted the authorities that the applicant was trafficking in cocaine and marihuana. The source had personally observed the applicant in possession of cocaine and provided information as to his name, physical description and [address ], Brampton, Ontario, as well as his vehicle (blue Honda CXG), and its licence plate […]. In addition, the source mentioned his phone number used to conduct drug deals; the source also provided details about Sarkis, his next-door neighbour, [address], Brampton, Ontario, and his car (silver Honda), and its licence plate […], and that he sold drugs as well.

[2] This led to the Toronto Guns and Gang Task Force conducting surveillance of the applicant between 4-6 January 2018. Over the course of two days he was observed to engage in what they believed were three hand-to-hand drug transactions.

[3] Subsequently, on 7 January 2018, search warrants were executed on his address and motor vehicle. A quantity of cocaine was located in the automobile; MDMA, Percocet and over $1800 was seized from his bedroom.

[4] Charges were laid for trafficking in the three controlled substances and possession of proceeds of crime.

[5] The applicant argues on this pre-trial motion that there were insufficient grounds in the information to obtain (ITO) the search warrant such that it ought not to have been issued. In particular, it is alleged that it failed to disclose reasonable and probable grounds; the respondent resists the attack by arguing that the search warrant could have issued as redacted.

[6] In accordance with the procedure outlined in R v Garafoli, 1990 52 (SCC), [1990] 2 SCR 1421, I am required at this stage of the proceedings to determine if the Crown can support the authorization on the basis of the material as edited. While the parties agree on the test to apply, and no viva voce evidence has been adduced on the application nor leave sought to examine the affiant, the parties differ on whether the totality of the circumstances based on the confidential informant’s tip meets the standard of the necessary reasonable grounds of belief: see R v Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

[7] It is not set out on which date the investigation in the instant case began. The confidential informant indicated, however, that he/she knows the applicant and was aware that he was dealing a large quantity of drugs on a daily basis. Information was provided about his motor vehicle, his girlfriend who frequently accompanied him, his house, as well as his next-door neighbour, Sarkis, who was also selling drugs, and his car. The information included that the applicant uses his cell phone to set up drug deals.

[8] After the investigators confirmed the applicant’s name, address and vehicle descriptions with the Ministry of Transportation, surveillance was set up on January 4, 5 and 6, 2018. While no criminal activity was observed on 4 January, the next day, 5 January, the team observed what they believed was a hand-to-hand transaction by Sarkis near to his house. On this same day, the team believed they witnessed the applicant engage in a hand-to-hand transaction outside his home. Subsequently, he was seen to leave the area in another motor vehicle and enter a residence where the team believed a hand-to hand transaction occurred.

[9] On 6 January 2018, the applicant was seen to exit his house and enter a motor vehicle. After driving a short distance away, the team believed that a hand-to-hand drug deal took place.

[10] The crux of the applicant’s argument is that the ITO in support of the search warrant was based on a single confidential informant after only 3 days of surveillance. During this time the applicant was not the sole target of the investigators. Moreover, the observations of his engaging in criminal activity were of limited scope and duration, in the applicant’s view, and essentially innocuous.

[11] Crown counsel, on the other hand, states at the outset that a search warrant is presumptively valid, and the applicant bears the onus of demonstrating that it is not: R v Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549. The role of the reviewing judge is also circumscribed. Her task is to determine whether the issuing judge could have granted the warrant on the basis of the reliable information set out in the affidavit, and as amplified on review. The authorization must only be set aside where the reviewing court is satisfied, on the whole of the material presented, that there was no basis for it: R v Araujo, 2000 SCC 65.

[12] It is common ground that as a precondition for the issuance of the authorization, credibly based probability is required. Reasonable and probable grounds, not mere conclusory statements, are required. Moreover, it is the whole of the document that is the subject of scrutiny upon review.

[13] In weighing the evidence relied upon by the authorities when assessing the reliability of a confidential informant, the Supreme Court in Debot set out the following three lines of inquiry:

(1) Was the information predicting the commission of a criminal offence compelling?

(2) Where the information was based on a tip from a source outside the police, was the source reliable?

(3) Was the information corroborated by the police prior to making the decision to conduct the search?

[14] It is to the parties’ arguments on each of these issues that I now turn.

1. Was the information predicting the commission of a criminal offence compelling?

[15] Defence counsel observes that this aspect of the Debot analysis focuses not on the source of the information, but rather on the information itself, and whether it has characteristics that lead to the conclusion that it is reliable. A compelling tip is one that is detailed and based on first hand observations that are reasonably current: see R v Woo, 2017 ONSC 7655 at para. 49.

[16] An example of a compelling tip, notes the applicant, is furnished in R v Rocha, 2012 ONCA 84. As summarized at para. 23, the Court described such a tip as “detailed and current”. It was not limited to conclusory allegations of criminal conduct but was sourced to “direct” observations by the informant and personal knowledge. The source also had a first-hand basis for the information and gave detailed information about the drug activity. It was not based on rumour or gossip.

[17] By way of contrast, it is argued here that the information provided about the applicant was significantly less compelling. Lacking in detail, it also is not compelling in terms of actual criminal activity. In fact, it consists of generally innocuous information. As for the criminality aspect, there is no specific date or timeframe surrounding the alleged drug dealing, such as the location or how drugs were distributed or to whom. In sum, the information is, at most, “minimally compelling.”

[18] Conversely, Crown counsel submits that the information furnished by the source was very compelling. He had direct observations of the applicant’s drug possession and told the police that the applicant was trafficking a large quantity of cocaine and marihuana daily. Indeed, the source ‘s observations were first hand, made through “personal observations and conversations”.

[19] Additionally, significant personal details about the applicant were provided by the confidential informant. This included his name, description, address, details of his motor vehicle and girlfriend. Further details were provided about his neighbour Sarkis, and his involvement in drug trafficking as well.

[20] As for the timing of the information, while not stated in the ITO, it was described by the affiant as being “as recent and compelling as information of this nature can be” and “conveyed to police in a timely manner”. Moreover, it is argued that any lack of compelling features to the tip are more than overcome by the high level of reliability and level of corroboration in the case.

[21] With respect to this first branch of the Debot inquiry, I am of the respectful opinion that the information supplied by the confidential informant, and apparent on the face of the ITO, is more than minimally compelling as argued by the applicant, even if it is not as substantially compelling as claimed by the respondent.

[22] The significant compelling features of the subject information include its being premised upon first hand observations that indicate details as to frequency and amount of drug trafficking. While there is no specified date as to the dealings, it appears to be “reasonably current” given the covert surveillance observations which followed of multiple hand-to-hand transactions over the course of a few days, leading to the obtaining of search warrants immediately afterward. In short, the observations do not take the form of bald conclusory statements based on nothing more than rumour or gossip.

[23] Indeed, the information extended beyond the applicant, and included his neighbour, as well as details about his motor vehicle, which was involved in some of the transactions, and his female companion, who was also seen in his company during such times. Information which includes the name of the party, a description of his house, its location, his motor vehicle and its particulars, properly forms part of the compelling calculus: see R v Kesselring (2000), 2000 2457 (ON CA), 132 O.A.C. 41 at paras 9-11; R v Greaves-Bissearsingh, 2014 ONSC 4900 at para 40.

[24] I consider the information provided in this case to be, in fact, highly compelling. It resembles, in many aspects, the quality of the information so described in R v Nguyen, 2015 ONCA 753 at para. 19 where the subject information was derived from the informant’s direct interaction with the accused. The combination of the vehicle description, complete with licence plate, the specific address where the target sold the informant marihuana and the physical description of the target was thus held to be more than bald conclusory statements or mere rumour or gossip.

[25] Nguyen answers one other concern raised by the applicant, namely, the absence of any reference to the date the information was gleaned from the informant and the nexus to the police investigation. In that case, the date the police received the tip and the date the informant met with the target were redacted from the information to obtain the search warrant. However, the Court considered that the nature of the information that was disclosed, coupled with the subsequent police surveillance, addressed any concerns arising from the absence of this information: see Nguyen, para. 20.

[26] Similar information is available to the applicant in the instant case. The affiant has used descriptors such as “as recent and compelling as information of this nature can be” and “conveyed to police in a timely manner”. It is further stated that the observations of the applicant’s criminal activities took place “over a recent time period.” I do not therefore consider the lack of a more precise temporal period to detract from the sufficiently compelling nature of the subject information.

[27] In conclusion, I am satisfied that the first branch of the Debot test, which requires the information predicting the commission of a criminal offence to be compelling, has been met.

2. Where the information was based on a tip from a source outside the police, was the source reliable?

[28] Relying further on Woo at para. 48, the applicant observes that the credibility assessment that relates to the trustworthiness of the source of the information in the ITO involves considerations such as the motivation of the informer, his/her criminal history, and any past history in providing information to the police. No one such factor is dispositive.

[29] It is noted that in the instant case it is unknown whether the issuing justice was made aware of the informant’s criminal record, and if it included any crimes of dishonesty. The applicant concedes, however, that there is some level of credibility to the information.

[30] In support of the credibility of the confidential informant, Crown counsel begins by noting that the source was registered and that he/she had been proven reliable in the past. This was evident in the ITO. Indeed, it was indicated that information provided by the informant in the past to the police resulted in the arrest of drug traffickers and seizures of evidence, precisely the kind of information given by the source in the case at bar.

[31] It was also set out in the ITO that the source had been cautioned and acknowledged that providing false information to the police could result in criminal charges. No promises were made to the source prior to providing the information. While the motivation of the source is not apparent, it is submitted that the previous reliability of informer is high, and the information can be considered to be very credible.

[32] In my respectful opinion, an informant’s credibility as evidenced by a previous and proven history of providing accurate information to the police in drug investigations weighs heavily in support of this second branch of the Debot test. Indeed, it may buttress weaknesses in the other areas of inquiry, particularly as to the compelling nature of the information: see R v Whyte, 2011 ONCA 24 at paras 21-22, aff’d [2011] SCC 49.

[33] It is therefore of significance that the information provided by source, who was registered with the police, was in relation to the same course of conduct of which previously reliable information was furnished by this person.

[34] As noted in Rocha, an informer who is known to the police, and found to be reliable in the past, will be “privy to details not normally known to the public.” (para. 24) Valuable information was provided to the police by the source in that case, as here. In addition, in both cases the source was made aware that providing false information could lead to criminal prosecution.

[35] Stated shortly, it is clear that the source in the instant case was manifestly reliable or credible. The evidence on the record before me admits of no other conclusion in this regard.

3. Was the information corroborated by the police prior to making the decision to conduct the search?

[36] The remaining matter for consideration concerns whether the information provided by the informant was corroborated. The applicant devotes most of its argument towards this issue. In essence, it submits that the warrant lacked “sufficient, credible and reliable evidence, meaningfully corroborated, to find reasonable and probable grounds to believe that an offence had been committed at the specified time and place alleged.” (Applicant’s Factum, para. 19).

[37] On the evidence contained in the warrant, there were three surveillance days in total, one of which yielded no results. The two alleged hand-to-hand transactions observed the second day occurred 90 minutes apart from each other; the third took place the following evening. However, the applicant notes that no details are provided about the transactions in the ITO, such as approximate time or duration. Neither is there any indication that the applicant was seen to be in possession of any money, drugs or other drug trafficking paraphernalia. Indeed, the drivers of the other motor vehicles in the alleged hand-to-hand transactions were not followed or investigated further.

[38] In short, it is the applicant’s position that there is a lack of any “meaningful observations” by the covert surveillance team in relation to the alleged hand-to-hand drug transactions. The surveillance report and notes of the individual surveillance officers, which are part of this record and presumably reviewed by the affiant, include no such details or particulars. Absent salient observations about any such interaction, the applicant’s conduct meeting others amounts to nothing more than “innocuous human behaviour”: see R v Shah, [2018] O.J. 6237 at para. 36 (C.J.).

[39] The police surveillance thus fails to corroborate the applicant’s alleged drug trafficking and criminality. The observations are of limited scope and duration; the information supplied by the source is lacking in important details. While there were observations of the applicant leaving his residence and going away by foot or in his motor vehicle, there is no nexus in the alleged offences, his home and motor vehicle. Nothing, in other words, submits the applicant, gives rise to a reasonable basis for believing that the suspect under observation was engaged in conduct that is distinguishable from that of a law-abiding person: see R v Muller, 2011 ONSC 4892 at para 48, rev’d on other grounds, 2014 ONCA 780.

[40] Counsel for the Crown argues, in turn, that the police investigators corroborated a “significant number” of personal details provided by the informant, and aspects of criminal behaviour. Indeed, its chart in Tab 2 contains five separate items of “source information” about the applicant, such as his physical description, residence, motor vehicle (make, colour and licence plate number), his girlfriend, and most significantly, that the applicant is dealing large quantities of cocaine and marihuana on a daily basis. Each of these items of information is corroborated through police surveillance and database checks. The same is done with respect to four areas of “source information” about his neighbour. Sarkis, who is also selling drugs and observed to be doing so by the surveillance team.

[41] In the Crown’s view, the observations by the police of three alleged drug transactions over a two-day period cannot simply be characterized as innocent behaviour, when combined with compelling information from a proven and reliable source that the applicant is engaged in trafficking drugs. Indeed, it is precisely the type of behaviour of which the informant claimed to have first hand knowledge.

[42] There is no requirement, in any event, submits Crown counsel for the police to specifically observe a drug transaction take place through the exchange of money and contraband. As courts have noted, trained police officers are able to differentiate innocuous quick interactions with friends from those that occur more frequently and nefariously, being mindful of the fact that “mobile drug trafficking” is conducted in a secretive manner which makes it unlikely for the authorities to actually witness money or drugs change hands: R v Buchanan, 2016 ONSC 2101 at paras 48, 50, aff’d 2018 ONCA 151.

[43] I am of the respectful opinion that the confirmed details in the instant case sufficiently relate to the alleged criminality. More than innocuous details were substantiated. The source indicated that the applicant was involved in daily episodes of drug trafficking. This is precisely what the covert surveillance team observed.

[44] There is no requirement that there must be “actual confirmation of the very offence alleged”: Muller, para. 48. The authorities, in other words, do not have to prove the crime before investigating the tip. The confirmation need only be capable of supporting the allegation of criminality.

[45] The informant in this case, as noted earlier, was a known credible source. Indeed, he was a registered confidential informant. His information on previous instances, involving similar allegations of criminality, proved reliable. In this instance, he spoke directly to the police officer affiant, relating first-hand observations and communications with respect to the applicant. The police proceeded to seek and obtain other information to confirm many of the significant and factual details furnished by the informant. This quality of confirmation evidence, much like that in R v Soto, 2011 ONCA 828 at para. 9, extends well beyond observations of innocuous behaviour and everyday interactions with others.

[46] I conclude, therefore, that the requisite confirmation of the information has been established. Put shortly, numerous material aspects of the tip were confirmed by the police, including the applicant’s whereabouts and activities suggestive of drug trafficking by him: see R v Rocha, para. 25.

Totality of the Circumstances

[47] In the applicant’s view, there remains insufficient grounds in support of search warrants being authorized for his residence and motor vehicle. The grounds for the ITO were based on the information of a single confidential human source. Notwithstanding the “reasonable level of detail” provided by the source and that such information was “seemingly credible”, the authorities failed to corroborate the source’s information of alleged criminality. (Applicant’s Factum, para. 26) In particular, there was no meaningful corroboration of the source’s information, nor any compelling information about the likelihood of drugs being located at the applicant’s address or in his motor vehicle.

[48] The absence of a valid warrant thus renders the searches of the applicant’s house and automobile presumptively unreasonable. Neither were there exigent circumstances justifying such a warrantless search. Without reasonable and probable grounds to support the instant searches, the applicant’s s.8 Charter rights protecting him from being subjected to unreasonable search or seizure have been violated.

[49] Crown counsel asserts, on the other hand, that the redacted ITO and amplification evidence, substantiate that there was sufficient reliable and credible information such that the issuing justice could have issued the warrants. That is, it cannot be said that there was no basis for the issuance of the warrants in this case.

[50] The relevant information in this case included first hand observations of the applicant in possession of drugs on multiple occasions, from a proven reliable, registered, source. In addition, there was corroboration of significant personal details and a number of suspected hand-to-hand drug transactions. This, submits the respondent, constitutes an ample foundation in support of the issuance of the warrant. Moreover, any deficiency in the compelling nature of the information provided by the source was more than compensated by his credibility and corroboration of several material aspects of such information.

[51] With respect to the totality of the circumstances test, to this point I have discussed and applied the three planks of the Debot criteria individually. However, no one factor triumphs another. Weakness in one area may be offset by strength in another. Indeed, as stated in Debot, each of the relevant criteria need not be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief.

[52] As I have endeavoured to explain, I am of the respectful opinion that each of the relevant considerations set out in R v Debot has been met. The tip from the informant was detailed and current. It was based on first-hand observations and communications, not hearsay and rumour. The source was highly reliable. Indeed, he/she was a registered source and had provided the same type of valuable information about drug trafficking in the past. Lastly, the information was corroborated. Numerous material aspects of the tip were confirmed by the police, including indicia of the applicant’s daily routine of drug trafficking.

[53] In addition, I am satisfied that there is a sufficient factual nexus to justify the search of the applicant’s residence and motor vehicle. As noted by Hill J. in R v Sanchez (1994), 1994 5271 (ON SC), 20 O.R. (3d) 468 (Gen.Div.) at para. 39, it is “common knowledge” from experience with search warrants that “evidence relating to the offence may be discovered at premises under the control of one suspected to be complicit in the crime.”

[54] The items that were listed to be searched for in the instant case, namely cocaine, proceeds of crime and drug paraphernalia, are precisely the kind of things that are likely to be found at premises under the control of a person reasonably believed to be trafficking in such controlled substances. Indeed, the affiant stated in the ITO that his experience afforded him the belief that the types of items to be searched for were routinely found in the address where a person lives, and in the vehicle, which is a mode of conveyance for the transportation of such contraband, that the person uses.

[55] It is my respectful conclusion, then, that based on the totality of the investigation, the police had the requisite grounds to search the applicant’s home [address], Brampton, Ontario, as well as his motor vehicle, a blue Honda CXG. It follows that there was a proper basis on which the Justice of the Peace could have issued search warrants for the applicant’s house and motor vehicle.

[56] For these reasons, there was no violation of the applicant’s rights under s.8 of the Charter to be secure against unreasonable search or seizure.

[57] As a result, the application to exclude evidence on this basis must be dismissed.

R. Libman J.