Court File and Parties

Ontario Court of Justice

Date: 2020-11-13

Court File No.: Guelph #19/1340 & #19/1566

Between:

Her Majesty the Queen

— AND —

Christian Crowe

— AND —

Tanner Mitchell

Before: Justice M.K. Wendl

Heard: November 12, 2020

Reasons for Judgment Released: November 13, 2020

Counsel

E. Quayle — counsel for the Crown

S. Gehl — counsel for the defendant Christian Crowe

S. Cheshire — counsel for the defendant Tanner Mitchell

Judgment

WENDL J.:

Introduction

[1] Christian Crowe and Tanner Mitchell stand accused of narcotics and weapons offences, including possession of narcotics for the purpose of trafficking, conspiracy to traffic in narcotics, simple possession of narcotics and the possession of brass knuckles and a taser contrary to two prohibition orders.

[2] The accused challenge the sufficiency of the search warrant which led to the discovered evidence and their arrest. For the reasons below, I find the warrant sufficient. It contained reasonable grounds for the execution of a search at 110-90 Carden Street in Guelph.

Law

[3] First, I find it best to anchor this judgment with reminder of the purpose of Section 8 of the Charter, which protects against unreasonable search and seizure.

the purpose behind Section 8 of the Charter is to prevent unreasonable searches before they happen, not merely determining after the fact whether they should have happened. [1]

[4] The test for reasonable grounds is one of credibly-based probability [2]. In addition to that, reasonable grounds must reveal that a crime was committed and that the place to be searched will afford evidence.

[5] The test for sufficiency of an information was re-articulated by the Supreme Court in Morelli:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [3]

[6] Counsel for the defence are not requesting excision of information nor is the Crown requesting that the ITO be amplified, the bulk of the argument centres around the purported weakness in the informants' information and a lack of sufficient corroboration.

[7] If the police are relying on an informant tip as the basis for a search, Wilson J. of the Supreme Court of Canada put forward a 3-part test to justify the 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. [4]

[8] In dealing with the reliability of informants Ferguson J., of Superior Court of Ontario, in R. v. Nguyen summarized the law as follows:

(1) it is important to ascertain whether the "tip" contains sufficient detail to ensure that it is based on more than mere rumour or gossip;

(2) it is important to ascertain whether there are any indicia of the informant's reliability;

(3) it is important to know the informant's source of knowledge and its reliability;

(4) it is important to know if the informant is acting vindictively: R. v. Greffe, [1990] 1 S.C.R. 755 at para. 47; R. v. Garofoli; R. v. Zammit, [1993] O.J. No. 881, 13 O.R. (3d) 76 (C.A.); R. v. Sutherland, [2000] O.J. No. 4704, 52 O.R. (3d) 27 (C.A.). [6]

[9] When the information provided to the police by an informant is capable of an innocent explanation, or there are fewer details provided, the level of corroboration required by the police is higher. As stated by Wilson J. in Debot:

As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. [7]

[10] In relation to the nature of surveillance contained in an ITO, the Supreme Court, in R. v. Caissey, agreed with a majority of the Alberta Court of Appeal, that corroboration of a criminal particular is not necessary.

[11] At the same time, corroboration of common place and common knowledge items is not compelling corroboration. In the case of Dhillon, the Ontario Court of Appeal disagreed with the trial Judge that the evidence should not have been excluded under the 24(2) analysis because the warrant was insufficient. The Court of Appeal excluded the evidence discovered. Significant for this analysis is the Court of Appeal's finding that:

The trial judge observed that the information provided by the confidential informant relating to the four handguns was not detailed and that the detail that was provided was not compelling. In this regard, he said, "information about where someone resides, and what type of car they drive ... is not compelling."

Further, the trial judge noted that there was no indication of when the handguns were observed, of the source of the confidential informant's information or of the basis of the confidential informant's belief that the handguns were still in the appellant's home. In addition, there was "insufficient information about the reliability of the confidential informant, and the basis for any reliability."

[12] The reputation of the suspects may be germane to the grounds for the search if the record or reputation is based on first hand knowledge and is related to the subject matter of the ITO. For example, as Wilson J. said in Debot, a driving record is not relevant to a drug investigation.

[13] Finally, before beginning the analysis of the ITO, it may be useful to have a frame of reference as to the content of reliable confidential information. On the specific facts of Debot, Wilson J. said:

I find that the information received by Constable Gutteridge was sufficiently specific to warrant the attention of the police. The informant identified the participants and the courier, named the location of the transaction, and specified the time of day when the event would take place. He also gave the basis for his assertions, namely, a conversation with one of the participants. The information did not take the form of bald conclusory statements or "mere rumour or gossip", to use the words of Martin J.A. [11]

Analysis

[14] The purpose of the search warrant was to find evidence of drug trafficking. The affiant believed that evidence would be found at 110-90 Carden St. in Guelph. The search took place on February 28, 2019.

[15] Mr. Mitchell's criminal record reveals 3 convictions for possession for the purpose of trafficking. In fact, the affiant of the ITO himself arrested Mr. Mitchell for possession for the purpose of trafficking in December 2016. Mr. Crowe has one conviction for possession for the purpose of trafficking in 2015. To put it in the words of Wilson J., both Mr. Crowe's and Mr. Mitchell's records are germane.

[16] The ITO contains a total of nine informants. Of the nine, CI #1, CI #3, CI #7 and CI #9 have provided information in the past, which has led to arrests. In particular, the information from CIs #1 and #7 has led to numerous charges, while CI #7 has provided information that has assisted in developing grounds for over 40 search warrants. This provides some indicia of reliability.

[17] The motivation for each confidential source was provided in the ITO. The dominant sources of motivation are financial and charge consideration. The defence argues that these motivations would induce them to lie, however, I do not view it that way. For example, informant #7 seems to make a career out of informing, therefore if he provided false information, a significant source of income would be cut short. In relation to the charge consideration, clearly, if information is not reliable there would not likely be much consideration. In my view, at the very least, the stated motivation does not detract from their credibility.

[18] I believe the defendants' strongest arguments about the CI information are in relation to the source of it and its sometimes-generic nature. That being said, CI #3's information is very compelling. CI #3 has first-hand knowledge of Tanner Mitchell selling drugs. They purchased fentanyl from Tanner Mitchell in mid February and they saw Tanner Mitchell with quantities of fentanyl and methamphetamine for sale. Again, the information was provided in mid-February and was proximate to the execution of the warrant.

[19] I will qualify what I mean by "sometimes-generic nature". There are numerous references throughout the CI information such as "Tanner Mitchell is the biggest dealer in town right now", or that "Tanner Mitchell gets his fentanyl from Hank". Given the lack of source information on these types of quotes, they are problematic. I do not know if this information is based on rumour, known fact or even hearsay. However, interspersed throughout these types of comments are some indicia of reliability. First, they provide specific phone numbers for Tanner Mitchell and Christian Crowe, this indicates some personal knowledge of both Crowe and Tanner. Second, they put Christian Crowe and Tanner Mitchell together in this endeavour. Third, certain specifics are identified such as CI #1 states "Tanner resupplied meth on 16 January 2019 and attended Christian Crowe's residence to deal at 90 Carden St., Apt. 110" and "Tanner Mitchell and Christian resupplied fentanyl on 28 January 2019". This is very specific and compelling. CI #2 provides specifics about "Hank", being in his 50s and from Stratford and they provide detail about who is "chopping" for Tanner. CI #5 indicates that Mitchell accepts stolen goods for drugs. CI #7 state specifically that they deal out of 110-90 Carden St. and that they reloaded on February 6, 2019.

[20] Overall, there are significant indicators of reliability throughout the nine CI's and, overall, their information is proximate in time to the execution of the search warrant. However, my analysis is not determined solely by their information, it is done in conjunction with the surveillance.

[21] On January 16, 2019, which is significant since CI #1 alleges a re-supply and dropping off of that same supply at 110-90 Carden St., surveillance was lost on Tanner Mitchell in the evening. However, video has him entering 90 Carden at 10:43 pm, 28 minutes after losing the surveillance team. He attends Christian Crowe's apartment with two backpacks and leaves with one. This is some corroboration of CI #1's assertion.

[22] Surveillance demonstrates that on January 29, 2019, individuals attended 110-90 Carden St. for quick visits. Most significantly, one of these visits was by a known drug user. She attended for one minute and then left immediately.

[23] On that same day at 3:09 pm, Mitchell met up with a known drug user who leaned into the passenger seat of the vehicle he was seated in and then walked away with a slice of pizza in a paper bag and his left hand inside his pocket. Three minutes later, at 3:12 pm, another person believed to be a drug user approached the rear passenger window, where Mitchell was seated, passed money through the window and then a small plastic item was passed to him in return, which he quickly examined and put in his pocket. Those two quick interactions, particularly the last one at 3:12 pm are indicative of drug transactions, in my view. Again, on the same day at 4:57 pm a vehicle pulled up to 90 Carden St. and the occupants attended apartment 110. They left four minutes later. Throughout the next four hours, on January 29, individuals came and went from apartment 110, some permitted to enter, others not.

[24] On January 30 surveillance was engaged upon 110-90 Carden St., again. Between 1:15 pm and 5:20 pm several people, including numerous known drug users attended apartment 110. Again, some were allowed in the apartment some were not. Again, this is some corroboration of drug dealing from 90 Carden St., Apt. 110.

[25] The rest of the surveillance on January 30 shows a steady flow of known drug users entering apartment 110-90 Carden St.

[26] More surveillance was conducted on February 26, 2019. Crowe was seen entering apartment 110-90 Carden at 9:14 am. Over the next several hours over 10 individuals were observed arriving and leaving this unit and staying for 5-10 minutes. At 8:02 pm Tanner Mitchell left apartment 110 to go to the Parkview Motel. A known party attended to the Parkview Motel shortly afterwards, Mitchell attended to the known party, who remained in his vehicle, and left within 1 minute. The known party left and was seen ingesting drugs by inhalation shortly thereafter.

[27] Mitchell returned to 110-90 Carden St. at 10 pm. The resident of unit 307-90 Carden St. attended to 110-90 Carden St. at 10:45 pm and left 5 minutes later. A visitor to the resident of 307-90 Carden overdosed in that residence around 1 am. There is a clear inference that the drugs resulting in the overdose came from 110-90 Carden St.

[28] In my view, the grounds are clearly established. CI #3 is extremely compelling, the past proven reliable informants shows some indicia of reliability, detailed information flows through the CI information despite concerns about source and generic information. The evidence of drug transactions from the surveillance is strong. In particular, the transaction that occurred on January 30 at 3:12 pm, the flow of known drug users from 110-90 Carden Street, the clear link on the 26 of February between Mitchell (who had left just left 110-90 Carden St) and a known party using drugs shortly after his interaction with Mitchell at the Parkview Motel, and the overdose at 1 am in apartment 307.

Conclusion

[29] The ITO reveals reasonable grounds that Christian Crowe and Tanner Mitchell were engaged in the selling of narcotics and that 110-90 Carden St. would contain evidence of the alleged offences. The application is dismissed.

Released: November 13, 2020

Signed: Justice M.K. Wendl