Court File and Parties

Ontario Court of Justice

Date: 2019-11-05

Court File No.: Kitchener 18-929-01, 18-929-02

Between:

Her Majesty the Queen

— and —

Tyler Thibodeau and Scott Brown

Before: Justice W. G. Rabley

Heard on: October 8, 2019

Reasons for Judgment released on: November 5, 2019

Counsel:

• D. Russell — counsel for the Crown
• D. McCarthy — counsel for the accused Tyler Thibodeau
• J. Garland — counsel for the accused Scott Brown

Judgment

RABLEY J.:

Introduction

[1] The Waterloo Regional Police Services executed a warrant to search the residence at 19 Campbell Avenue, in the City of Kitchener on February 7th, 2018. As a result of the search, Tyler Thibodeau and Scott Brown are charged with a number of weapons and drug offences.

[2] Mr. Thibodeau brought an application to have the fruits of that search excluded under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the Information to Obtain was deficient in that there were insufficient grounds to issue the warrant.

[3] A copy of the redacted ITO was filed with the defence application as well as an affidavit from Tyler Thibodeau. The ITO was written by Constable Jeff Westrop of the Waterloo Regional Police. The officer relied upon information given to the police by an informant named CI as well as background information obtained through computer checks and some police surveillance.

Position of the Parties

[4] The position of the defence is that the ITO is deficient in that:

(1) there was insufficient information in the Affidavit to establish that the confidential informant or CI was credible and reliable;

(2) there was insufficient corroboration by the police by way of independent investigation of the information provided by the CI;

(3) the corroboration offered by Constable Westrop was propensity evidence that was conclusory rather than factual;

(4) there were omissions made by the officer that significantly impact upon the trustworthiness of the ITO; and that

(5) the court should find that it would be unreasonable to rely upon the ITO because to do so would violate Mr. Thibodeau's section 8 Rights. Therefore, the court ought to exercise its discretion pursuant to section 24(2) of the Charter to exclude the evidence obtained as a result of the search based upon the warrant.

[5] The position of the Crown is that:

(1) the ITO contains enough information for the court to determine that there were reasonable grounds for the issuing Justice of the Peace to do so;

(2) the information in the ITO was accurate;

(3) it is impossible to corroborate all the information provided by a Confidential Informant and in this case, there was significant and reliable corroboration provided;

(4) if there were omissions or inaccuracies in the ITO, they were not done intentionally and there are sufficient grounds independent of these omissions or inaccuracies for the Justice of the Peace to have granted the warrant; and

(5) under the Grant analysis even if the court concluded that there was a section 8 violation, the breach was technical, the evidence obtained was real and is necessary, because without it, there is no case against the accused.

Legal Principles to Be Applied

[6] Counsel for the defence relies upon Justice Lamer's comments in R. v. Debot, [1989] 2 S.C.R. 1140, where he set out the concerns to be addressed in a warrantless search:

"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."

[7] Both counsel agree that the test to be applied is one of reasonable probability based upon credible information and that the onus is upon the defence to establish that on the basis of the information provided in the ITO that the warrant should not have been issued.

[8] I would begin my analysis by repeating the Court of Appeal's statement of principles set out in R. v. James, 2019 ONCA 288:

(1) Warrant review begins from a premise of presumed validity. The onus of establishing invalidity falls on the person who asserts it.

(2) 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.

(3) 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. Was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued?

The Confidential Informant

[9] The CI provided information to Sergeant Cardoza of the Waterloo Regional Police for financial gain. He understood that he would not be paid for information if it was not truthful or accurate.

[10] Sgt. Cardoza would take the information provided by the CI, summarize it and prepare a 'contact sheet'. The warrant in this case contained information on five separate contact sheets.

[11] The ITO disclosed that the CI had associations in the criminal subculture. In drafting the ITO, Constable Westrop set out that the CI:

(1) had previously provided information in the past that led to successful arrests;

(2) had provided information used as part of the grounds to obtain a CDSA search warrant where a seizure was made; and that

(3) "Information provided by CI #1 has been corroborated through police computer checks, surveillance, as well as information from other confidential informants."

[12] The information provided by the CI was from others whom he had spoken with and from his own direct observations.

Corroboration

[13] The police sought to corroborate the information provided by the CI. Surveillance was undertaken of Mr. Thibodeau's residence and workplace on July 13th and 17th, 2017. Information was also gathered using the computer which formed the basis of the information relied upon by Constable Westrop.

Grounds for the Warrant

[14] In my view, the following evidence justifies the issuance of the search warrant:

(1) the CI was a known entity. This information was not the result of an anonymous tip or an untested source. Although the CI had not given extensive information in the past, he/she had previously provided information that had been substantiated at a later time;

(2) the CI had direct knowledge that there was a firearm in the residence at the place to be searched. In 2018, it was reported that the "CI has seen a pump action shotgun in the house." The balance of the statement is redacted and so the date of the observation was not listed which calls into question when the observation was made. It would be reasonable for a Justice of the Peace to infer that this observation was made in 2018 given that the CI did not advise Sgt. Cardoza in one of the two Contact Sheets in 2017, that he had personally seen the weapon at that time. He did advise that he had seen shotgun slugs. Therefore, it was reasonable to conclude that the observation was made in close proximity to the date of the warrant which was executed in early February 2018;

(3) The CI had consistent knowledge that the firearm was in the residence over a period of time from 2017 to 2018. Unlike drugs and other items that are likely to be moved quickly, the firearm in this case was being stored in a residence. For example, in R. v. James, 2019 ONCA 288, the trial judge found it unreasonable that drugs would be found in a motor vehicle 23 days after first seen. Guns are different from drugs and it is not unreasonable to believe that they can be kept in a home for a much longer period of time. In this case, it would not be unreasonable for a Justice of the Peace to be satisfied that the gun was still present at the time that the ITO was presented;

(4) The CI gave consistent detail about the weapon on three of the four contacts over the reporting period from 2017 to 2018. In 2017, the CI reported that Thibodeau "has a shotgun" and that it "is a semi-automatic and is real". In 2018, the CI reported that he had "seen a pump action shotgun inside the house". On a later Contact Sheet the CI reported "Thibodeau still has a shotgun inside his house on Campbell Avenue" and "The gun has been converted from a pump action to a semi-automatic";

(5) The CI's information was buttressed by other observations. He had personally observed shotgun slugs which is consistent with the use of a shotgun. He learned information from Scotty Brown who was residing at 19 Campbell Avenue that "the gun is still there" as of 2018. The police corroborated that Scotty Brown was at 19 Campbell Avenue and that there was a warrant for his arrest as reported by the CI when they arrested Mr. Brown coming from the house on February 2nd, 2018. Therefore, it would be reasonable for a Justice of the Peace to conclude that the gun was being kept by Mr. Thibodeau at his residence and that the CI as well as others had seen it in 2017 and 2018;

(6) Information provided by the CI was corroborated by the police. The CI reported that Thibodeau had "been done with guns before". The police corroborated this. Thibodeau had been charged with an unauthorized firearm in 2013. Although this knowledge may have been known by those close to Mr. Thibodeau, it is reasonable to infer that this kind of information would be less likely to be discussed 4 to 5 years later unless it was by someone who was involved in the offences, or someone close to the person whom had been charged;

(7) Many of the details provided by the CI were corroborated by police surveillance.

(a) Thibodeau resided at 19 Campbell Street and worked at Adams One Stop located at 14 Bloomingdale Road, Bloomingdale. The police observed a man meeting Mr. Thibodeau's description travel from one address to the other. The likelihood of that being someone other than Mr. Thibodeau would be remote. The police confirmed Mr. Thibodeau's last known address on his license was 19 Campbell Road;

(b) "Thibodeau bikes or walks everywhere". Although Thibodeau was seen in a vehicle by the police, he had no license which is corroborative of the CI's information;

(c) 'Thibodeau has 2 Pitbull's and a Boxer which is vicious'. The police observed Thibodeau playing with two dogs in the rear of his residence;

(d) Thibodeau's home on Campbell Avenue "is a yellow house with wooden steps and a veranda in front of it". The police confirmed this description as well as the fact that a gray Mustang and a Cadillac were parked at 19 Campbell Avenue;

(e) "Scotty Brown knows he is wanted" and "is hiding out" at the house. The police confirmed that there was a warrant for Scott Brown and arrested him leaving 19 Campbell Avenue on February 2nd, 2018;

(f) the physical description of Thibodeau by the CI matched the description of the male that the police observed travelling from Campbell Avenue to Bloomingdale.

[15] In my view, the information in the ITO was compelling and met the test of "likely probability". To summarize, the CI had a history of providing truthful information to the police, he made personal observations of the firearm and the shotgun slugs and had other information that was given to him by others who were associated to the house. He provided a narrative over a lengthy period of time which established that the firearm had remained within the home of 19 Campbell Avenue and he provided other information that was corroborated by the police.

Defence Objections

[16] The Defence position is that there was insufficient corroboration provided to the Justice of the Peace to establish that the CI was credible and reliable and that the omissions by Constable Westrop, when drafting the information should cause me concern. The Defence argues that the information provided by the CI was "reputational," uncorroborated or inaccurate.

[17] I agree with the submission that evidence of propensity of a general type of offender is a thin basis to justify the issuance of a search warrant. As noted in R. v. Morelli, 2010 SCC 8: "to permit reliance on broad generalizations about loosely defined class of people is to invite dependence on stereotypes and prejudices in lieu of evidence."

[18] The defence argues that the reports by the CI that Mr. Thibodeau is a "gun guy", a "military type" and a "wannabe cop" as well as the suggestion that he "deals in drugs" are all unproven and therefore undermine the credibility and reliability of the CI. With great respect, I disagree. The police are not required to corroborate every aspect of a CI's information for a Justice of the Peace to act upon it. The evidence of corroboration needs to be reasonable and may relate to evidence that does not form the basis of the criminal behaviour involved.

[19] The Defence further argues that because the information as to when the CI observed the gun at Thibodeau's home is not dated, likely because it was redacted in the ITO, that it is unknown how recent it was and therefore cannot be relied upon. Without repeating what I said earlier about the continuity of the information provided about the gun, I respectfully disagree. As the British Columbia Court of Appeal said in R. v. Ballendine, 2011 BCCA 221 at para. 54: "Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor."

[20] In my view, the information provided by the CI was not dated, but sufficiently recent to justify a Justice of the Peace concluding that the shotgun was still at the Campbell Avenue address at the time of the issuance of the warrant. In that regard, I agree with the comments of Justice Fairburn in R. v. Herta, 2018 ONCA 927 at para. 48, where he stated: "I agree with the sentiment expressed in Delchev, at paras. 73 - 75, that an inference can be drawn that "criminals who are illegally in possession of guns" may have them for long periods of time."

[21] Was it reasonable for the issuing Justice of the Peace to conclude that the gun was still present at 19 Campbell Avenue when the warrant was issued? In my view, it was.

[22] Finally, the Defence argues that Constable Westrop omitted important information and that in doing so, he misled the Justice of the Peace. In particular, within the "Overview" section of the warrant, the officer indicated that Mr. Thibodeau has a "criminal history which includes the following charges: Possession for the Purpose of Trafficking cocaine and marijuana, Unauthorized Possession of a Firearm and Careless Use of a Firearm".

[23] In the "Investigative Chronology" at paragraph 34, the officer set out the information contained in an occurrence report dated January 30, 2013 which alleged that Mr. Thibodeau was involved in drugs and weapons. All of the charges were withdrawn except one count of Weapons Dangerous for which Mr. Thibodeau received a suspended sentence.

[24] Under the heading "CPIC", Constable Westrop set out the following:

(1) Tyler Thibodeau was charged in 2013 for Possession of a Schedule I and Schedule II substances for the Purpose of Trafficking contrary to the Controlled Drugs and Substances Act.

(2) THIBODEAU was convicted for Possession of a Weapon for a Dangerous Purpose and received a suspended sentence.

[25] An informant is required to give a "full and frank" disclosure of all the circumstances that form the basis of an ITO. In my view, it is problematic to set out that an individual was charged with offences and then not advise that those charges were not proceeded with. The clear inference to be drawn by the reader of the ITO is that the individual committed the offences.

[26] The Crown submits that it would be reasonable for the Justice of the Peace to conclude on their own that the charges must have been withdrawn or stayed or dismissed because they were not included as convictions in paragraph (g). I disagree. It should not be for a Justice of the Peace to guess or "read between the lines" whether or not the charges relied upon which form the basis of the ITO were actually prosecuted by the Crown.

[27] The defence suggests that this omission is further evidence that the ITO was based on propensity evidence. The charges were listed in the ITO. It was known to the author that they had been withdrawn. Therefore, the only reason for so doing was to create the impression that Mr. Thibodeau was a "bad guy" to create prejudice and to corroborate the information provided by the CI.

[28] In my view, the submission has some merit and were it the case that there was no other evidence before the Justice of the Peace, I would give serious consideration to this position. However, I cannot do so in this case.

[29] It must be remembered that the information provided by Constable Westrop was accurate. It simply was not complete. The police were not seeking to obtain a warrant regarding a search for drugs but were seeking to obtain one for the purpose of searching for a gun and shotgun shells. As I have stated earlier, in my view, there was compelling evidence to support the issuance of the warrant for that purpose.

[30] It must also be remembered that the information about Mr. Thibodeau's involvement in drugs was not the major focus of the ITO. In my view, the officer was not intentionally trying to mislead the issuing Justice of the Peace. He was setting out the background to provide context as to what the CI had given by way of information. It would have been preferable if Constable Westrop had included the information that the charges were not proceeded with, but that omission does not in my view invalidate the basis for the issuance of the warrant.

[31] I would repeat and rely upon the comments of Justice Blair in R. v. Nguyen, 2011 ONCA 465, where he said in paragraphs 55 and 57 of his decision:

55. Addressing the non-facts referred to above would not have changed anything. The non-facts, had they been mentioned, would not have undercut the reasonable grounds to believe that evidence of an offence having been committed was to be found in the house at 304 Sheppard Ave. Unlike in cases such as Morelli, the failure to advance and explain away the omitted facts here did not invite an inference or conclusion that would not have been drawn had the non-facts been disclosed.

56. That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a suf­ficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.

[32] I should add that even if I were to find that there was a section 8 breach, I would say that under the Grant analysis that this was not a serious breach and that it did not impact on the protected rights of Mr. Thibodeau given that there was compelling evidence which justified the issuance of the warrant in any event.

[33] Therefore, given the findings that I have made, I would find that the defence has not met the onus on it to establish that there was insufficient evidence which reasonably could have been believed to support the issuance of the warrant. I would therefore dismiss the application.

Released: November 5, 2019

Signed: Justice W. G. Rabley