Ontario Court of Justice

Date: September 25, 2020

Court File No.: Region of Niagara 998 18 N2953

Between:

Her Majesty the Queen

— AND —

Robert Crozier and Natalie Burke

Before: Justice J. De Filippis

Heard on: February 28 & September 14, 2020[1]

Reasons for Judgment released on: September 25, 2020

Counsel

Mr. D. Anger — counsel for the Crown

Mr. M. DelGobbo — counsel for Robert Crozier

Mr. M. Evans — counsel for Natalie Burke

De Filippis, J.:

Introduction

[1] On June 29, 2018, the Morality Unit of the Niagara Regional Police Service commenced an investigation into Robert Crozier. Acting on information received from a confidential human source (CHS), the police conducted surveillance and obtained a warrant to search his home in Niagara Falls. That warrant was executed on July 16, 2018. In an upstairs bedroom, the police found a "cocaine processing station". They also found a locked safe in the bedroom closet. It contained 475.7 grams of cocaine in seven bags. Crozier was arrested the same day at Clancy's Bar in Niagara Falls. He was found in possession of $4,926.00 in cash. Several months before these events, in January 2018, Crozier won $250,0000 in a lottery.

[2] The defendants were charged with possession for the trafficking in cocaine and possession of proceeds obtained by crime. Crozier seeks exclusion of the aforementioned evidence on the basis that his right to be free from unreasonable search and seizure was violated. In aid of this motion, he also asked to cross-examine the affiant who obtained the search warrant.

[3] Natalie Burke did not participate in the motions brought by Mr. Crozier but asserts her right to benefit by any remedy granted to her co-defendant.

Legal Framework

[4] Section 8 of the Canadian Charter of Rights and Freedoms provides that, "Everyone has the right to be secure against unreasonable search or seizure". Statutory provisions authorizing search or seizure must conform to this minimum constitutional requirement; namely, "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of search; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. The affiant's subjective belief in these grounds must be objectively reasonable; Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.).

[5] The application of this standard means that "the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion". "Mere suspicion, conjecture, hypothesis or 'fishing expeditions' fall short of the minimally acceptable standard from both a common law and constitutional perspective;" R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.). On the other hand, "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued;" R. v. Jacobson, [2006] O.J. No. 1527 (Ont. C.A.).

[6] Most challenges to search warrants address the sufficiency of the information set out in the Information to Obtain (ITO). This is known as an attack on facial validity. In such cases, the reviewing judge must determine whether there is a basis upon which the authorizing judge could be satisfied that the preconditions for the granting the warrant existed. This inquiry focusses on the ITO itself. Cross-examination of an affiant is relevant only with respect to sub-facial validity. If it is shown that statements by the affiant in the ITO may not be accurate, or pertinent information that could have affected issuance of the order was omitted, cross-examination will be relevant.

[7] Judicial orders are presumptively valid. In challenging a search warrant, there is no right to cross-examine the affiant. In Garofoli, [1990] 2 S.C.R. 1421, the court held, at paragraphs 88-89:

Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted.

[8] The law does not require an Applicant to present a prima facie case in support his/her assertions or make a substantial preliminary showing of fraud or recklessness on the part of the affiant. However, an Applicant must do more than merely suggest inconsistencies and make conclusory statements. The Applicant must point to the evidentiary basis to justify cross-examination: R. v. Ambrose, [1994] O.J. No. 1457 (OCA). This prevents "fishing expeditions".

[9] The basis upon which a search warrant may be quashed is set out in Garofoli, at paragraph 56:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

The Supreme Court explained in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, that, "In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued."

[10] It is often the case that a search warrant includes information from a CHS. There are three factors that must be addressed in determining whether a search warrant based upon confidential information meets minimum constitutional standards: First, was the information predicting the commission of a criminal offence compelling? Second, was the source credible? Finally, was the information corroborated by police investigation? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. This is well established law; R. v. Debot, [1989] 2 S.C.R. 1140.

[11] The tension between informer privilege and the right of an accused to make full answer and defence was addressed by the Supreme Court of Canada in "step six" to the process it established. As pointed out in Crevier, 2015 ONCA 619, step six allows the Crown to rely on the un-redacted ITO in defending the warrant's validity, provided adequate measures are taken to preserve the accused's right to make full answer and defence. This is accomplished by providing the Defence with a judicial summary of the redacted material. This gives the Crown another option where it would otherwise have to concede a Charter breach because the ITO, after redactions are made to protect a confidential informer's identity, no longer discloses reasonable and probable grounds.

Cross-Examination of the Affiant

[12] The ITO, which I will examine more closely later, contains three categories of information; the CHS, police surveillance, and police checks of internal and government records (e.g. re vehicle registration). Crozier applied to cross-examine the affiant in four areas:

i. Observations made during the surveillance and the conclusions arrived at;

ii. Crozier's lifestyle and living means, including lottery winnings;

iii. The nature and extent of independent investigations conducted by the police which are said to have corroborated the CHS and bolstered the ITO;

iv. The basis of information provided by the CHS

[13] For oral reasons previously given, I granted leave to cross-examine in one area; whether affiant knew that Crozier had won $250,000 in lottery winnings. Since the ITO averts to the defendant's lifestyle in the face of no employment, failure to mention the lottery winnings could amount to deception on the part of the affiant. I ruled that the other three areas are properly subject of a challenge to facial validity.

[14] Having regard to my ruling, the cross-examination of the affiant, PC Scaletta, was brief. It is clear to me that he did not know why he had been called to testify before the trial proper. When the point in question was put to him, he testified that he did not know about the lottery winnings when he prepared the ITO. He added that he first learned about it from the defendant when the latter was arrested on the present charges and after the search warrant had been executed. This testimony was not undermined or otherwise contradicted.

Submissions on Facial Validity of the Search Warrant

[15] In written and oral submissions Mr. DelGobbo fairly set out the relevant passages of the ITO and accurately described the applicable legal principles. I will expand upon both in a moment. The essential submission by Mr. DelGobbo is that the information provided by the CHS is neither compelling nor creditable. It is lacking in detail and amounts to no more than mere conclusions. There is no indication as to how the CHS came by the information, when it was learned and whether it was from direct observations or mere rumor or gossip. It is further pointed out that there is no information with respect to how many prior occasions the CHS had provided information and whether this had proven reliable. Counsel rightly points out that although the affiant asserts his belief that the informant is reliable an authorizing justice cannot simply accept that bald conclusion. In this regard, Mr. DelGobbo notes that Appendix D to the ITO is not before me. The Crown elected not to rely on a judicial summary of it, as provided by step six, in Garofoli. As such, I cannot speculate what additional information the authorizing justice may have relied upon in determining the present motion. It is also asserted that the police were "careless in not having googled the defendant's name, thereby realizing that he had won a significant amount of money in the lottery". This would have explained his ability to purchase new cars and golf without having employment or a legitimate business. Lastly it is submitted that the brief interactions that the police observed Crozier to have with several individuals could have been due to people asking him if they could borrow money.

[16] The Crown concedes that there is little in the redacted ITO that speaks to the credibility of the CHS but adds that the level of detail makes it "somewhat compelling". The Crown's defence of the present motion is anchored in the submission that the report from the CHS is amply supported by independent investigation by the police. Counsel argues the totality of information could reasonably be believed and justify the issuance of the search warrant. Although, during argument, I pressed the Crown on the potential risk he had taken in not providing me with a judicial summary of the redacted material, as permitted by step six in Garofoli, on my review of this matter, I have come to the conclusion that I must accept the Crown submission about the facial validity of the search warrant.

Analysis of the ITO

[17] The ITO declares that any information which could disclose the identity of the CHS is contained in Appendix D to the document. It is asserted that Appendix D cannot be disclosed and that it includes the following information:

i. The criminal record, if one exists, and any criminal charges the CHS currently faces;

ii. The history of the CHS status with police, including search warrants, arrests and/or the seizure of contraband assisted in by the source. Also included are instances, if any, where the source was found to be truthful or misleading and their motivations for providing information;

iii. What, if any, consideration has been requested and or given in exchange for the information provided;

iv. The personal characteristics of the CHS including drug addictions or mental health issues;

v. How the CHS came to possess the information provided (first hand observations, directly from the subject of information, second hand, etc.)

[18] Appendix D has been redacted from the ITO. I do not know what information it contains and if or how it may have assisted the authorizing justice. As such, it is not relevant to this motion.

[19] The affiant deposes that the CHS wants to remain confidential. He adds that he trusts "because they know that any false information would sever the relationship with the police and could result in criminal charges". The affiant claims the CHS is reliable, that the informant is credible and compelling as it has been corroborated by investigative techniques such as surveillance. My opinion in these matters is set out below.

[20] The information provided by the CHS is as follows:

i. Crozier is a cocaine trafficker

ii. Crozier buys larger amounts of cocaine from his supplier and sells it in smaller amounts ….[redacted portion]

iii. [redacted]

iv. Crozier recently purchased a new truck

v. Crozier lives on Martin Ave in Silvertown [Niagara Falls]

vi. Crozier's wife is addicted to crack cocaine

vii. Crozier sells from his residence

[21] The police investigation, as described in the ITO, confirms the fourth and fifth items above and the surveillance is consistent with the other statements. I will summarize this surveillance.

[22] On June 27 at 12:38 PM a van arrived at a home on Martin Avenue in the Silvertown area of Niagara Falls. A woman exited the motor vehicle and entered the home. She returned to the motor vehicle one minute later and drove away. Almost immediately, at 12:40 PM a Chrysler pulled up to the residence and a man exited and walked into the home. Within two minutes that man returned to his car and drove away. At 3:26 PM the previous van returned and parked in front of the home. A woman wearing a long flowing black dress exited from the home and walked to the open driver side window of the van. She reached her hands inside and brought them together with those of the driver. The van immediately pulled away after the interaction and the woman re-entered the residence. Several minutes later, Crozier left the residence with the woman in the flowing black dress. They entered a Dodge Ram motor vehicle and drove to a methadone clinic in Niagara Falls.

[23] The affiant notes that methadone is administered to current and recovering drug addicts. Crozier was observed to drive this woman to the clinic on subsequent occasions. He also went there alone several times. The affiant explains why he believes this woman to be Crozier's spouse and that the Martin Avenue home is their residence.

[24] On July 5 at 9:10 AM a white pickup truck with the markings of "Ontario Power" arrived at the Crozier residence and parked on the road. As it did so, Crozier exited the front door of his home and approached the open window of the white pickup truck. He had his hands near that open window. At 9:18 AM the pickup truck drove away and Crozier walked away. At 3:08 PM a man riding a bicycle arrived at the residence and knocked at the door. Four minutes later, Crozier came to the front porch and admitted the man into the residence. Seven minutes after that, the man left the home and rode away on his bicycle.

[25] On July 9 at 11:46 AM a grey van pulled up to the road in front of the Crozier residence. An older white male exited the vehicle and walked to a mailbox at the home and then knocked on the window above it. He returned to his vehicle. One minute later Crozier exited the residence and walked directly to the driver side open window and both hands entered the window and he returned to his residence as the van drove away. This interaction lasted a few seconds. At 1:59 PM, Crozier drove to the parking lot of a housing complex in Niagara Falls. Almost immediately after he parked, a man was seen walking away from the open driver side window of the vehicle. The man entered unit 14 of the housing complex and Crozier exited the parking lot and drove away. Two hours later, Crozier left his home and returned to the same parking housing complex. He arrived there at 3:46 PM and parked in the same area as before. He was seen to drive away from the housing complex at 4:04 PM.

[26] The next day, at 9:22 PM, Crozier drove from his home to the same housing complex, exited his vehicle and walked up the stairs to unit 20, opened the screen door, and handed something to the person waiting inside. After this exchange, which lasted two or three seconds, he returned to his vehicle and drove away.

[27] On July 11 at 12:32 PM a white pickup truck with Ontario Hydro markings on the side pulled up to his residence. An older white man exited the driver seat and walked up to the door of the home. He returned immediately to his pickup truck. At 12:40 PM Crozier stepped out of his home and went to his mailbox and back inside. A few minutes later, he came out again and walked to the driver's side open window of the pickup truck. He had both hands inside the window. Several minutes later, he returned to his residence and the truck drove away. At 3:22 PM a man in a tank top walked up to the Crozier residence at the same time as Crozier came outside. The two men went to the backyard. Four minutes the man walked away from the home.

[28] On July 12, at 10:16 AM, Crozier left his residence and walked to a vehicle parked on the street. It was a white pickup truck with Ontario Hydro markings on the side. Crozier had both hands inside the driver side open window of the truck. Twelve minutes later, Crozier walked away from the vehicle and the truck drove away. The truck was followed by police to a dead end street with no houses. It parked against brush that concealed it on both sides. The man did not get out of the vehicle. It drove away two minutes later. The affiant opines that the man picked this secluded spot to consume drugs, just obtained from Crozier.

[29] On July 16 at 1103 AM Crozier left his residence with a female passenger and drove to a grocery store in Niagara Falls. He parked in the lot and the female exited the vehicle and entered the passenger seat of a green Ford that was also parked in the lot. Less than one minute later the woman exited the green Ford and returned to the Crozier vehicle. Both vehicles then left the lot. Crozier drove to the methadone clinic and both he and the female went inside.

[30] During the surveillance, the police also saw Crozier affix plates on the Dodge Ram he was seen driving at all material times. The plates reveal that he had recently purchased the vehicle. In this regard the affiant also deposes that although Crozier had purchased a new vehicle and had been seen playing golf, the surveillance did not reveal any evidence that he was lawfully employed.

Conclusions

[31] There is nothing in the redacted ITO before me that speaks to the credibility of the CHS. I agree with the Crown that the information provided is somewhat compelling. The general assertions by the CHS and the limited details are amply supported by the police investigation. The police conducted surveillance on nine days over a period of three weeks. This surveillance revealed that on 14 occasions Crozier met with people at his residence or had physical interaction with people outside his home at parking lots. All meetings were brief. The affiant declares that this is indicative of drug trafficking. This is a reasonable inference. The police surveillance that Crozier had affixed new plates to the Dodge Ram suggests the CHS information is recent and not stale.

[32] As already stated, the purpose of the search warrant review is not to second guess the issuing judge. In R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757, the Court of Appeal for Ontario has stated that (at para 11):

The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge's opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked.

[33] I find that the observations of the police constitute important corroboration of the CHS. This corroboration makes up for weaknesses in the other Debot criteria. The experience of the affiant informed his conclusion that the observed actions by Crozier are consistent with that of a drug trafficker. This experience is of some relevance to my decision; R. v. Williams, [2014] ONCA 908.

[34] The ITO, considered in totality, and in context, can give rise to a reasonable inference that the defendant was engaged in drug trafficking. As such, the authorizing judge was presented with reliable evidence that might reasonably be believed and, as such, the warrant could have issued. In this regard, I note that in R. v. Dezainde, [2014] ONSC 1420, the court concluded that reasonable and probable grounds had been established when the police acting on a tip followed the accused and saw several short visits and concluded this pattern of conduct was consistent with drug dealing.

Result

[35] I find that the defendants' rights, as guaranteed by s. 8 of the Charter were not infringed. I dismiss the motion to exclude the evidence obtained by the execution of the search warrant.

Released: September 25, 2020

Signed: Justice J. De Filippis

[1] After the appearance on February 28, 2020 this case was adjourned several times because of the pandemic.