Court Information

Ontario Court of Justice

Date: 2020-01-15

Court File No.: Toronto 18-1500862

Parties

Between:

Her Majesty the Queen Respondent

— And —

Maleek Fearon Applicant

Before: Justice Patrice F. Band

**Ruling on s. 8 Garofoli Application

Counsel

Mr. E. Gilman — counsel for the PPSC

Ms. T. Kent — counsel for the Applicant

Decision

BAND J.:

I. Introduction

[1] In September 2018, a Confidential Informant ("CI") informed Toronto Police officers that the Applicant was dealing drugs. In November 2018, officers began an investigation. This led them to arrange for an undercover officer (a "UC") to meet with the Applicant and purchase drugs from him. On November 5, 2018, the UC bought a quantity of cocaine from the Applicant, who was sitting in a Toyota RAV 4 (the "Toyota"). The Applicant then drove away towards a home that the CI had told police was the Applicant's. Three minutes later, a police officer saw the Toyota parked in the driveway of that address. He was not arrested on that day. The police decided to keep investigating. In the next week or so, the UC had more drug-related conversations with the Applicant. On November 13, police sought and obtained a warrant for the home and the Toyota. Drugs and other evidence were found in the home. The Toyota was not there and was never searched.

II. The s. 8 Application

[2] The Applicant brought a s. 8 Charter Application challenging the sufficiency of the warrant pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. In aid of that application, the Applicant sought leave to cross-examine the Affiant of the Information to Obtain the warrant (the "ITO"). During submissions on the leave application, the Crown liaised with police and provided a number of answers to the Applicant, who then abandoned that aspect of the application. A second version of the ITO with fewer redactions and some additional clarifications was made an exhibit in the proceedings.

[3] The Applicant did not present any evidence and the matter went over for a straight-forward, facial challenge to the sufficiency of the grounds for the searches. With only one exception that I will discuss below, the Applicant did not allege that the ITO contained misleading information. To the extent that the Applicant argued that there were omissions, this was more of an attack on the thoroughness of the investigation than on the quality of the ITO per se.

III. The CI and the Investigation

[4] In Sept 2018, the CI told police that the Applicant was trafficking in heroin. The CI supplied police with two nicknames as well as a date of birth for the Applicant, and later positively identified him as the male in question. Appendix D of the ITO contains the following additional information provided by the CI:

• The Applicant deals heroin from his vehicle at the Pearldale Plaza in the Finch and Duncanwoods area;
• The Applicant lives at a given address in Toronto (the "Toronto Address");
• The Applicant's cell phone number (the "Applicant's Number");
• A "drop name" for the Applicant that is safe to use;
• A description of the car the Applicant drives: a silver Audi with a particular license plate number (the "Audi"); and
• The Applicant will usually have heroin on hand, or he gets some on request.

While the ITO disclosed the CI's motivation, it did not disclose whether the CI had a criminal record or discuss the CI's history of providing information to police, stating that the latter was "not known." During submissions on the leave application, the Crown informed the Court and the Applicant that while the CI has a criminal record, it does not contain convictions for dishonesty. Furthermore, the CI was a carded informant with the Toronto Police. The Crown also advised that the CI's information was current to within 30 days of September 11.

[5] In the body of the ITO, under the heading "Conclusion", there are three paragraphs. In the first of these, para. 10, the Affiant states:

Toronto Police Service drug squad received CHS [1] information that the suspect, Maleek FEARON is involved in the illicit sale of cocaine out of [the Toronto Address]… (my emphasis)

[6] In November 2018, police began their investigation of the Applicant. Police checks revealed the following:

• The Applicant's birthdate is the one that the CI gave police;
• MTO records show that the Applicant's "last known address" was a given address in Brampton (the "Brampton Address");
• The Applicant was the driver of a grey Audi that was involved in a motor vehicle accident on June 24, 2018; it had the same license plate number as the one the CI had referred to;
• The Audi was registered to a woman whose home address was listed as the Toronto Address;
• An address history search of MTO records listed the Toronto Address as the Applicant's address "prior to April 19, 2018" – how long prior to that date is not known; and
• On November 2, 2017, the Applicant told the Toronto Police that the Toronto Address was his in an unrelated matter in which he was the complainant.

[7] In early November 2018, the UC arranged to engage in a drug transaction with the Applicant by calling the Applicant's Number. On November 5, the Applicant identified himself by one of the nicknames the CI had given police. They arranged for a transaction involving cocaine and heroin. The Applicant directed the UC to Weston Rd. and Finch Avenue West (the "proposed location of the UC buy") before redirecting him to a parking lot at Finch Avenue West and Milvan Drive (the "actual location of the UC buy"). Once there, the UC found the Applicant in the driver's seat of the Toyota. From there, the Applicant sold him a quantity of cocaine for $100 of police buy money. He told the UC that he could not provide him with heroin as he had been unable to get a hold of his supplier; he would get more at a later date. The Applicant then left and headed in the direction of the Toronto Address. Another officer (the Affiant) attended at the Toronto Address three minutes after the transaction was completed. The Toyota was parked in the driveway. The officer did not take steps to arrest the Applicant at that time as the investigation was ongoing.

[8] Police checks revealed that the Toyota was registered to the Brampton Address in the name of a third party.

[9] Between November 5 and 13, the UC had drug-related conversations with the Applicant, who told him he had heroin and would be able to provide it to him on the next occasion. On November 13, the police sought and obtained a warrant to search the Toronto Address and the Toyota. It was in force between the 13th and the 15th.

IV. Legal Principles Regarding Warrant Review

[10] The governing principles set out by the Court of Appeal in R. v. Crevier, 2015 ONCA 619 at paras. 62-90, include the following.

• A search warrant is presumptively valid, and the challenging party bears the onus of demonstrating, on a balance of probabilities, that it should not have issued.
• A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.
• Where, as here, the grounds for the warrant originate from information provided by a CI, the reliability of the informer and the information must be assessed by reference to the "three Cs" discussed in R. v. Debot, [1989] 2 S.C.R. 1140: the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.

[11] These Debot criteria 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.

[12] The test that I must apply is deferential. It 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.

[13] 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 into account the fact that authorizing justices, like triers of fact at trial, are entitled to draw reasonable inferences from the contents of the ITO: see Sadikov, supra, at para. 82, citing R. v. Vu, 2013 SCC 60 at para. 16, among others.

[14] Also, it is what the police did, not what they could have done, that must be evaluated: see R. v. Morley, 2013 BCSC 463, at paras. 21-22.

[15] I must take a common-sense and holistic approach to this task: see R. v. Herta, 2018 ONCA 927, [2018] O.J. No. 6429 at para. 21 (C.A.). The analysis should be on "the whole of the document, not a limited focus upon an isolated passage or paragraph" or "a line-by-line, word-by-word dissection": see R. v. Cunsolo, [2008] O.J. No. 3754, at para. 135 (2).

[16] 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 vehicles and homes; see also R. v. Balouch, [2016] O.J. No. 2210 (S.C.J.).

V. The Submissions of the Parties

Generally

[17] The thrust of the Applicant's submissions was that the police ought to have done more in this case because (a) the Applicant was not observed in the Audi and (b) his connection to the Toronto Address, if any, was weak. The Applicant argues that the CI was "wrong" about the car the Applicant would be driving and was therefore unreliable. As a result, the CI could also have been wrong about the Applicant's address and the police should have "twigged to this." His last known address was in Brampton and any connection he had to the Toronto Address was dated at best. That, it is argued, called for more investigation. The Applicant also points out that police did not see him enter the Toronto Address on November 5. Furthermore, unlike cases such as R. v. Soto, 2011 ONCA 828, [2011] O.J. No. 5899 (C.A.), the Applicant was not seen leaving the Toronto Address at any time, much less before going to sell drugs to the UC. Given the very high expectation of privacy in one's home, the Applicant argues that the warrant ought not to have issued in this case.

[18] The Crown argues that the ITO provides ample grounds for a warrant. In addition to the successful drug buy, including mention of an ability to obtain heroin, much of the CI's information was corroborated. The fact that the CI was carded enhanced the CI's credibility, as compared to an anonymous tip. The detailed nature of the information, including the description of the Audi, the nicknames, the safe "drop name" and the drugs the Applicant could provide, made the tip compelling.

[19] During his submissions, the Crown also presented a Google map depicting the Toronto locations at issue:

• Pearldale Plaza,
• The proposed location of the UC buy,
• The actual location of the UC buy, and
• The Toronto Address.

These locations lie along a stretch of the Finch Avenue West corridor spanning less than one kilometer. The Toronto Address is within approximately 500 m. of both the Pearldale Plaza and the actual location of the UC buy (by car). This, too, was corroborative of the CI's tip, if indirectly.

Regarding para. 10 beneath "Conclusion"

[20] Appendix D, as still redacted, contains no indication that the CI told the police that the Applicant sold drugs "out of" the Toronto Address. The Applicant urges me to find that the Affiant's statement at para. 10 was misleading. The Crown argues that a justice reading the passage in the context of the whole could not have been misled. I agree with the Crown. The ITO is short and simple. The material parts, including Appendix D, occupy six pages that can be read and understood quickly. Appendix D is one page long. It summarizes the information received from the CI in 8 brief sentences. The issuing justice could not have been misled by the Affiant's conclusion.

[21] I am buoyed in this conclusion by the fact that I was the one who raised this potential issue with the parties at the end of their submissions on the sufficiency of the warrant. Until then, neither of them had adverted to it. Importantly, it did not figure in the Applicant's written materials, in his submissions for leave to cross or on subsequent dates regarding s. 8 proper.

VI. Analysis

[22] Unlike many cases involving CIs, the police successfully bought drugs from the Applicant in this case shortly before seeking the warrant. It can hardly be doubted that the Applicant was a drug dealer. How the November 5 UC buy was arranged, using the cell phone number and nickname, as well as how it took place, including the Applicant's mention of an ability to obtain heroin, were highly corroborative of the CI's information. So, too, was the Applicant's link to the Audi, even though it was not used on that date. I would also describe the CI's information as compelling. It was detailed and no argument was made that it merely relied on second-hand hearsay, rumour, or gossip. The same cannot be said about the CI's credibility. While I acknowledge that the CI did not have convictions for crimes of dishonesty and that the issuing justice was aware of the CI's motivation, in the absence of information as to the CI's history as an informant, the ITO contains little in the way of indicia of credibility.

[23] Of course, the Debot criteria must be assessed in context, and weaknesses in one can be made up for by others, especially where there is good corroboration, as in this case. But the CI's bald assertion that the Applicant lives at the Toronto Address was not corroborated in the technical sense. However, little turns on that assertion. The warrant's validity does not depend on there being reasonable grounds to believe that the Applicant lives at the Toronto Address. A sufficient connection is enough.

[24] The central question is whether there exists such a connection. In this case, a sufficient nexus can be found in the police investigation seen in its context (including the corroborated information provided by the CI) and the reasonable inferences that can be drawn from it. The connection has its foundation in the following factors looked at cumulatively:

• The Applicant has a formal connection to the address as his own from November 2, 2017 to sometime before April 19, 2018;
• The CI's information, current to within 30 days of September 2018, connects the Applicant to the Audi registered to the Toronto Address;
• The Applicant was also involved in an accident with the same Audi in June;
• The CI knew the Applicant to sell drugs a short distance from the Toronto Address;
• On November 5, the Applicant arranged to meet with the UC at locations within a short distance of the Toronto Address to engage in a drug transaction; and
• The car the Applicant drove to and from the UC buy was parked in the driveway of the Toronto Address three minutes after the sale was concluded.

[25] On the basis of these factors, the issuing justice was able to reasonably infer that, despite his listed address in Brampton, (a) the Applicant's "place of business" is very close to the Toronto Address, (b) the Applicant has a number of connections and access to the Toronto Address and (c) the Applicant entered the Toronto Address after parking the Toyota in the driveway. These inferences, combined with the fact that the Applicant transported drugs in the area in two different vehicles and that the drugs and other paraphernalia must be stored somewhere (as Madam Justice Kelly put it in Balouch, supra, at para. 50), support a finding that there were reasonable and probable grounds to believe that there were controlled substances and related material within the Toronto Address.

[26] As I say this, I am mindful of the Applicant's argument based on Soto, supra. In that case, the accused had gone directly from his apartment to the location of the drug transaction. At para. 4, the Court of Appeal cites the trial judge's finding that "it is reasonable to believe that he would have had the drugs on his person when he left the apartment." In the next paragraph, the Court upheld the trial judge's reasoning, which spoke "to an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence."

[27] I believe it would be an error to read Soto as creating a "one-way street"– from residence to drug transaction but not the other way around – as a matter of logic or law in drug trafficking cases. It seems to me that its logic can be equally compelling in reverse. When a drug dealer, who sells within a small geographical area, goes to a nearby residence to which he or she is connected immediately after a transaction with an undercover police officer, it follows that there is a good chance that there will be drugs or other evidence in that residence. Issuing and reviewing justices must take a common sense and holistic approach to the task of evaluating a warrant for sufficiency and remember that things other than controlled substances can yield evidence of drug trafficking. These include scales, packaging material, debt lists, cash and, as in this case, police buy money.

VII. Conclusion

[28] The police could have done more in this case. In fact, it would have been prudent for them to have done so. Nonetheless, for the above reasons, there were reasonable and probable grounds to believe that evidence of drug trafficking could be found in the Toyota and the Toronto Address. As a result, the s. 8 Application is dismissed.

Released: January 15, 2020

Justice Patrice F. Band

Footnote

[1] Confidential Human Source