DATE: 2021.08.08 St. Catharines
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BENJAMIN BOUCHER
Before Justice Fergus ODonnell
Reasons for judgment released on 8 August, 2021
Counsel: Vanja Ilic............................................................................................................. for the Crown Jaime Stephenson............................................... for the defendant, Benjamin Boucher
Reasons for Judgment
Fergus ODonnell J.:
Overview
On 14 May, 2019 members of the Niagara Regional Police executed a Controlled Drugs and Substances Act search warrant at a home in Fort Erie. In the house they found just over an ounce of cocaine as well as what the Crown characterizes as, "indicators of trafficking...including packaging material, a cellular phone, 2 digital scales, brass knuckles" and $2,645 cash. One of three adjacent outbuildings contained two steel presses and a vacuum sealer. As a result, Mr. Boucher was charged with possession of cocaine for the purpose of trafficking, possession of the proceeds of crime and possession of a prohibited weapon.
Although thirty-five years ago I might have reached a different conclusion, nowadays I must demur from the Crown's assertion that possession of a single mobile phone, without reference to its call patterns or text contents, constitutes an indicator of drug trafficking. That being said, the constellation of discoveries described above would leave the owner or occupant of a property in which those things were found with, "some 'splaining to do”, even with the presumption of innocence on his side.
The person with the explaining to do was the defendant Benjamin Boucher. Mr. Boucher, however, argued that he did not have to explain anything, because the Crown should not be allowed to rely on the evidence found by the police that day. He said that the warrant relied on by the police to enter his home was invalid and that the warrant relied on to enter the outbuilding was dependent on the warrant for the house and was therefore also invalid. All of the evidence seized, he said, should be excluded at his trial. Realistically, if the evidence were excluded, there would be no case for him to answer.
The Applications
In the lead-up to Mr. Boucher's trial there were two applications argued before me, the first for leave to cross-examine the officer who swore the informations to obtain the warrant, which I denied, and the second application to find that the searches violated Mr. Boucher's freedom from unreasonable search and that the seized evidence should be excluded from his trial.
I do not propose to linger on the application for leave to cross-examine. The governing law and its applicability to the precise facts of this case were capably argued and are well known. Obtaining leave to cross-examine is neither the greatest hurdle for an applicant to achieve nor is it automatic. Ultimately, I was not satisfied that there was any reasonable likelihood that granting leave would impact on the admission or otherwise of the seized evidence, a test set out by the Supreme Court of Canada in R. v. Pires, 2005 SCC 66, para. 31. Although there was a variety of shortcomings alleged against the informant and the material he submitted to the justices of the peace, it all seemed very much to me to be a case in which the central, dominant and, to be frank, the sole issue was the facial sufficiency of the grounds relied upon in relation to the searches of Mr. Boucher's property, or in other words: were the grounds presented to the justice of the peace such that they could (as opposed to would or should) lead to the issuance of the warrants in relation to Mr. Boucher's property. A greater flavour for the context within which I reached that conclusion can be gleaned from these reasons generally.[1]
The Grounds for Mr. Boucher
Distilled to its key elements, the information to obtain disclosed the following details relevant to whether or not a search of Mr. Boucher's residence might reasonably be authorized:
a. Mr. Boucher has a criminal record dating back to 1994 (when he was eighteen years old; he was forty-two years old at the time of the searches). He has four criminal convictions, two of which are for drugs. I have no idea how stale those convictions are or what offences they were for, only that his record began in 1994. That matters. Two convictions for possession of controlled substances for the purpose of trafficking in recent years could be the difference between reasonable grounds and insufficiency of grounds. The way the information to obtain is structured, however, Mr. Boucher's record could have begun and ended twenty-five years before the searches
b. In 2012 source #1 told a police officer that Mr. Boucher was a high-level heroin distributor. Source #1 is characterized as reliable, as having provided information leading to an undefined number of suspects being arrested and charged and an unspecified number of drug seizures and is said not to have provided unreliable information. Appendix D (colloquially, “the tearaway”) to the information to obtain, which was not part of the record before me, purportedly sets out details of source #1's history as an informant, any criminal record for source #1 and his or her motivation. There are at least two immediate observations that can be made about this information:
i. First, the currency of the information even at the time it was given, seven years before the searches, is not clear, nor is there any basis to assess whether, in 2012, this information satisfied the "three Cs test", in that it was compelling and/or credible and/or corroborated, to use the terminology of [R. v. Debot](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii13/1989canlii13.html). Such details may be in Appendix D or they may not. It may have been before the issuing justice of the peace or it may not. I simply do not know. I cannot speculate about what is or is not in Appendix D. For better or for worse, the Crown has chosen not to put that information before the court that is required to rule on the validity of the warrant. That is the Crown’s choice to make; it is also the Crown’s choice to live or die on.[2] ii. Second, 2012 was seven years before the warrants were obtained for Mr. Boucher's property. Even if the record before me showed that the information provided about Mr. Boucher in 2012 satisfied the three Cs test, the value of a seven-year-old allegation, standing alone, is infinitesimal (unless, of course the information was presented for a warrant in relation to an offence allegedly committed in 2012, which was not the case here).c. On 26 April, 2019, another target of the investigation, Mr. Steven Carver, attended Mr. Boucher's home and stayed for an hour and twenty-one minutes. Mr. Boucher was seen at the residence during this time. Mr. Carver took a dark bag from the house and put it in his truck before he left. On the basis of this observation and his understanding that Mr. Boucher was, "a known high-level heroin supplier", the informant concludes that Mr. Carver was obtaining heroin from Mr. Boucher. The informant prefaces his "supplier" comment with a note that he had spoken to two other officers who "are familiar with Ben Boucher," leaving the impression that those officers (and presumably the information from 2012) are the source of his conclusion. Other than the 2012 Source #1 information, the shortcomings of which are described above, there is, however, absolutely no additional information provided in this paragraph of the information to obtain to support the assertion that Mr. Boucher is a known, high-level supplier. That assertion is, on the material provided, entirely conclusory and the conclusory nature of that information in relation to Mr. Boucher is patent on the face of the information to obtain. The other two officers may or may not have had material information to support the conclusion about Mr. Boucher's role, but if that information exists, it is not reflected in the information to obtain (unless it is in the tearaway).
d. The police conducted video surveillance of Mr. Boucher's residence. The information to obtain says there were six days of video surveillance. The first reference to it relates to 7 May, 2019 and the video review was on 13 May. The information to obtain describes a total of three attendances by other people at Mr. Boucher's residence, each of six to seven minutes' duration, one on 7 May and two on 9 May. There is also a reference to a thirty-nine-minute attendance by someone on 10 May and Mr. Carver was present for twenty-four of those thirty-nine minutes. The video-surveillance summary says Mr. Boucher was at his home on 10 May, but does not say when.
e. Physical surveillance showed Mr. Boucher at his home and driving a black Chevy pickup truck on 8 May, 2019.
f. In the summary of grounds portion of the information to obtain the affiant states that Mr. Boucher was known to be home on three separate occasions when video surveillance showed a white male in a white pickup truck attended Mr. Boucher's home. Mr. Boucher's presence is not reflected in the actual summary of the video surveillance, which is not necessarily fatal, but the basis for concluding he was present is not stated, which does undermine the confidence that can be placed in that assertion – it is in effect an unsourced and/or conclusory assertion that does not allow the issuing or reviewing court to determine what weight should be given to it. I stress that the review of an information to obtain should not expect perfection and should give the informant the benefit of any reasonable inference, but it cannot presume facts to exist for which a basis is not provided.
g. Paragraph 121 of the information to obtain for the residence asserts that Mr. Boucher has sole access to the residence. There is no evidentiary foundation for this conclusion.
In relation to the outbuildings at Mr. Boucher's home:
a. On the search of Mr. Boucher's home the police found about an ounce of cocaine and the other materials described at the outset of these reasons. They also observed two sea containers and a garage in the yard. Through the garage window they saw two presses commonly used for drug trafficking and a vacuum sealer apparatus, also commonly used for drug trafficking. It goes without saying that the vacuum sealer bag especially and perhaps the presses might also have licit purposes, but the conjunction of those items with what had been found in the house clearly made out reasonable grounds for the search of the outbuildings. The informant obtained another warrant to search those outbuildings and seize the aforementioned items.
b. If the search of the residence was lawful, it would seem to me that the search of the curtilage including visual observations of the inside of the garage from a place the officers were entitled to be would also be lawful. If, however, the warrant for Mr. Boucher's house was not validly issued, then those additional observations were not lawfully made, which would require their excision from that information to obtain. Without those observations, there would be no grounds for the search of the outbuildings.
The Grounds for Mr. Carver
In relation to Mr. Carver's residence, the information-to-obtain discloses the following:
a. Mr. Carver has a criminal record with twenty-three convictions dating back to 1997, none of them relating to drugs.
b. Source #2 told a police officer in early 2019 that Mr. Carver lived in Fort Erie, always has heroin for sale and uses his black Dodge pickup truck to make deliveries of heroin. Appendix D to the information to obtain, which, as I have noted earlier, was not part of the record before me, purportedly sets out details of source #2's history as an informant, any criminal record for source #2 and his or her motivation.
c. Direct police surveillance of Mr. Carver showed him engaging in no fewer than nine clear hand-to-hand direct interactions that were compellingly consistent, particularly given their volume, with low-level drug trafficking. One of the persons with whom he met in that fashion was a known, low-level drug dealer. Another of the people he met in that fashion was driving a car registered to a known heroin addict and engaged in behaviour consistent with drug ingestion immediately after meeting Mr. Carver.
d. Direct police surveillance also showed two lower-quality observations also potentially consistent with drug trafficking, albeit less compelling, namely a five-minute visit to a nearby residence and dropping off an envelope at a separate residence. Neither of these events, in and of themselves, would be evidence of anything, but the development of reasonable grounds is always contextual, so they are not irrelevant. Of greater import, they are undoubtedly surplus to requirements as the observations in the preceding subparagraph more than adequately support reasonable grounds in relation to Mr. Carver, even without knowing whether Source #2 was speaking from direct knowledge or of particularly recent events. In short, the grounds in relation to Mr. Carver strike me as unassailable. Indeed, in argument, Ms. Stephenson very sensibly said that if her client were Mr. Carver rather than Mr. Boucher, she would not be challenging his warrant.
The Standard For a Constitutionally Valid Search and the Standard of Review
For a search (or other state invasion of a recognized privacy interest) to be constitutionally valid, it must be authorized by law and be factually based, satisfying one of a variety of standards depending on the context, typically either reasonable suspicion or reasonable grounds for belief. Also depending on the context, to be valid a search might require prior authorization by an independent third party, either a judge or justice of the peace. There is an additional requirement that the search be conducted in a reasonable fashion, but that was not argued before me and does not present itself on the facts.
The present case, principally a search of Mr. Boucher's home, in circumstances not engaging exigent circumstances, requires prior authorization by an independent judicial officer, which was done. A case such as this also requires that there be demonstrated reasonable grounds for belief that an offence has been committed and that evidence of that offence will be found in the place to be searched.
Certain rules govern my conduct of this hearing. Obviously, I do not apply a standard of perfection to the information to obtain, I allow latitude for reasonable inferences and I review the document in its entirety, not slicing and dicing it for microscopic review. I review the document on the basis of the record before me, meaning that anything that may have been before the issuing justice that the Crown has chosen not to place before me becomes irrelevant to my inquiry. At the same time, conclusory statements in the information to obtain or unsourced information (beyond reasonable inferences from reliable facts) are not part of the determination. As the reviewing court, I do not ask myself if I personally would have issued the warrant or if the warrant "should" have been issued, only if, on the record before me, the warrant "could" lawfully issue, i.e. that it could satisfy the standard of reasonable grounds for belief. That standard is not a particularly exacting standard; it falls somewhere between reasonable suspicion and a balance of probabilities.
The reasonableness of a person's expectation of privacy will vary with the circumstances. For example, the level of privacy one might expect while passing through Customs or an airport security line will not come close to the level of privacy one might expect in one's home. The relative sanctity of a person's home was recognized by the common law hundreds of years before the Charter of Rights was a twinkle in a prime minister's father’s eye. It dates at least as far back as Semayne's Case, (1604) 77 E.R. 194, to the effect that, "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...". It finds perhaps its most eloquent expression in the 1763 description by William Pitt as follows: "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!"
This language seems particularly apt to the present case. The house Mr. Boucher was living in belonged to his mother. He was renovating it and had it stripped to the studs, partially reduced to a dirt floor and he had discovered serious structural issues. It is a suitable substitute for William Pitt's 'ruined tenement'. The constitutional protections it enjoys as a residence, however, are the same as any residence.
Mr. Boucher did not resist the forces of the Crown on 14 May, 2019 – indeed, the material before me shows that he was very compliant – but Ms. Stephenson does now assert that the forces of the Crown had no right to enter Mr. Boucher’s home. Without wishing to do disservice to the calibre of her submissions, I distil them down to this: the grounds were far short of sufficient, the warrant – in relation to Mr. Boucher's residence compared to Mr. Carver's – ought never to have issued and the evidence obtained thereby should be excluded in this trial. Mr. Ilic dissents and says the grounds suffice, the evidence should survive and a trial on the merits should ensue.
Comments on the Material Before Me
There are a few characteristics of the information to obtain that do deserve comment, even keeping in mind the patent reality that informations to obtain are not expected to be all-encompassing or perfect, are often drafted under time constraints and are drafted by officers who have neither the level of legal training nor the luxury of limitless reflection that those passing judgment on their work after the fact enjoy.
It is unhelpful for an informant to say (similar to paragraphs 24 and 28 of the first information to obtain in this case), that a target has, for example, "### criminal convictions dating back to YYYY, ## (or none) of which relate to drugs". Attaching a copy of the criminal record is much more meaningful and would avoid countless allegations that pop up in cases like this alleging that the summary of the criminal record is misleading and either undermines the information to obtain or should justify cross-examination. Countless police officers have been accused of trying to mislead justices of the peace when the reality is very often that they were not dishonest or misleading but simply that they were less precise than they easily could have been in the content or format of the material submitted to a justice. Those officers’ reputations and a lot of court time could be saved by a tiny touch more attention to detail. The format I refer to is not rocket science and the preferability of that format to the much vaguer format used here is not remotely new. There may well be cases in which failing to provide that level of detail about a criminal record will not make a difference to the sufficiency of grounds (just as there may be cases where not disclosing the tearaway will not affect the outcome), but there is no good reason not to include the actual record.
As I have mentioned, almost every information to obtain a drug warrant and very many other warrants include a "tear-away" appendix containing information from confidential sources that cannot be disclosed, either in its bare, unredacted form or perhaps at all, without putting an informant's life or safety in jeopardy. In many jurisdictions, an edited version or "judicial summary" of that tear-away is provided in disclosure, although this region appears to be a peculiar exception to that practice when it comes to drug warrants, one of those mysteries that baffles me as much as how they get the Caramilk in the Caramilk bar. Ultimately, it lies within the discretion of the Crown how to prosecute its cases and there will be a certain percentage of cases in which it is not feasible to provide a judicial summary without endangering the informant, but that exception seems to have swallowed the rule in this region. As a practical matter, the Crown's failure to provide a judicial summary will, in many cases, make the Crown's task of defending the validity of a warrant much more challenging, thus increasing the risk that a Charter breach will be found and increasing the risk that relevant evidence will be excluded. My not knowing how the Caramilk got in the Caramilk bar does not affect its taste; my not knowing what is in the tear-away could be the difference between upholding a warrant or striking it down for insufficiency of grounds.
I have consciously chosen not to name the officer who was the informant for these two informations to obtain as I do not know whether the shortcomings in the material before me are individual or systemic or both. The summary of the officer's training shows a decade-and-a-half of police experience buttressed by several of the key training sessions relevant to this line of work – drug investigations, surveillance, search warrants, informer handling and the like. The shortcomings in his informations to obtain could reflect a number of concerns. It could simply reflect on him personally. It could reflect a failure to discern that the sufficiency of grounds in an investigation must always be analyzed for each target and each target location individually, just as they would be for a wiretap authorization. It could reflect on an under-resourced drug squad cutting corners as they run from pillar to post to deal with a serious drug epidemic that increasingly constitutes a threat to the community. It could reflect a failure on the part of the police adequately to recognize the relative harm of different types of offence in the community. It was noted in R. v. Hamilton (para. 104), that drug trafficking derives its status as a serious and dangerous offence from its impact on users and on communities, including its connection with derivative offences, including crimes of violence. Increasingly, however, drug trafficking has become a crime of violence because of its direct impact on mortality within the population. This is a product of both the trafficking of fentanyl and similar drugs and of the uncertainty faced by any user of street drugs as to whether or not what he or she is buying is actually what they think it is or whether it is perhaps something different, i.e. laced intentionally or otherwise with fentanyl, etc. Over the five years preceding this investigation (2015-2019) the average homicide rate in Niagara Region has averaged about four cases per year or slightly less than one homicide per hundred-thousand residents.[3] By contrast, by the most recent measure Niagara's opioid-related deaths come in around eight per hundred-thousand (both pre-pandemic and during the COVID-19 pandemic), putting the region in the unenviable top fifth of public health regions for opioid deaths.[4]
The Validity of the Warrants for Mr. Boucher’s Home and Outbuildings
Ms. Stephenson made various arguments in challenging the warrants for Mr. Boucher’s properties. One stream of argument went along the lines of bias/misleading information on the part of the affiant. This, for example included reference to the video surveillance observations at Mr. Boucher’s home, where she found fault with the informant’s failure to demonstrate that Mr. Boucher was or was not home at the relevant time or that he was or was not the sole resident of the house and said that the informant’s “mischaracterization” of attendances at Mr. Boucher’s home was wilful.
I did not find that line of argument to have traction. There is an important distinction to be drawn between information that is wilfully misleading and information that is insufficient to its purpose. Under section 11 of the Controlled Drugs and Substances Act it is the informant’s task to set out factually-based, properly sourced information of sufficient detail, force and relevance to establish reasonable grounds to believe that illicit item A is in location B. It is not his or her job to disprove every alternative explanation that might present itself. R. v. Garofoli makes it clear that brevity and selectivity are essential attributes of a good information to obtain. It is the informant’s right to assume that the judicial officer reviewing the information to obtain will be able to make his or her own assessment of what has or has not been made out, without laying out every possible alternate scenario arising from the facts.
Be that as it may, though, it does not help the Crown if I substitute the word “aspirational” to describe the informant’s conclusions where Ms. Stephenson might use the words “biased” or “misleading”. When I read the information to obtain in relation to the informant’s request for a warrant to search Mr. Carver’s home, the strength of the informant’s case is self-evident, even with no access to the tear-away portion of the information to obtain. The grounds for the Carver residence are as resistant to constitutional challenge as the ruined tenement is to the forces of the Crown. Those observations, even without any confidential informant information, virtually scream “drug trafficker” in relation to Mr. Carver. However, when I look at the evidence relating to Mr. Boucher and his residence, albeit viewed against the backdrop of his limited interactions with Mr. Carver as they must be, that scream drops to at best a whisper. That whisper could not objectively satisfy the standard in s. 11 of the Controlled Drugs and Substances Act in relation to Mr. Boucher. I can only conclude that the issuing justice failed to measure the strength of the evidence against Mr. Boucher and Mr. Carver individually, just as the informant himself did. Quite simply, the totality of the evidence relating to Mr. Boucher’s interaction with Mr. Carver, the attendance of various people at Mr. Boucher’s home, the strength of the evidence about whether he was or was not home when they attended, the number of instances and their duration, and so on, not only falls far, far short of the observations incriminating Mr. Carver, it falls far short of the standard of reasonable grounds for belief, which is the s. 11 standard.
There was, accordingly, a breach of s. 8 of the Charter of Rights in relation to the issuance of the search warrant for Mr. Boucher’s home. Insofar as the observations of the contents of the outbuildings were made as a result of the police attendance on the property based on that invalid warrant, those observations would necessarily have to be excised from the grounds for the second warrant and the second warrant itself is fatally flawed.
Is The Evidence Admissible Under Section 24(2) of the Charter ?
The determination of whether or not evidence that was unlawfully obtained should be excluded under section 24(2) of the Charter requires consideration of three considerations, namely the seriousness of the violation, the impact of the violation on the defendant’s rights and the public interest in a determination on the merits. Where the first two factors are called in the defendant’s favour, it will be relatively rare that the public interest in a trial on the merits, always a powerful contender in relation to hard drugs, will trump them.
In this case the insufficiency of the grounds vis-à-vis Mr. Boucher’s residence should have been patently obvious. As I have said, I do not know precisely where to attribute blame for the shortcomings of the information to obtain in relation to Mr. Boucher, but responsibility for the insufficient grounds clearly lies with the state and could have fairly easily been avoided by a considered analysis of the strength of the grounds for him vs. the strength of the grounds for Mr. Carver. As I have said, that is a basic proposition when a search involves multiple locations and defendants. This was a serious breach, even without any basis to conclude wilful shortcomings on the part of the police.
The impact on Mr. Boucher’s Charter-protected interests here is substantial. If this had been a search of an office or perhaps a storage unit, the Crown’s argument under s. 24(2) might have been more robust; it might have tipped the scale. However, this was his home, one of those “locations” for search that lies at the zenith of constitutionally-protected privacy.
Conclusion
On the facts of this specific case, the public interest in a trial on the merits does not overwhelm the force of the first two considerations. Accordingly, I excluded the evidence seized from the home and garage, whereupon there was no evidence upon which to argue conviction.
I placed Mr. Boucher on a peace bond as a result of the discovery of a prohibited weapon in his residence.
Released: 8 August, 2021
Footnotes
[1] I have referred to Mr. Boucher's property twice in this paragraph, consciously so. The investigation of Mr. Boucher also involved another person, Steven Carver, and the grounds for searching Mr. Carver's property effectively mirror the grounds for Mr. Boucher's property. It should go without saying that it is entirely foreseeable that grounds that are sufficient to justify the search of property A may not suffice for a search of property B.
[2] When I say, “the Crown”, I do not mean Mr. Ilic personally. It is the general practice of the standing agent for the Public Prosecution Service of Canada in Niagara Region not to present the “tear-away” appendix to the reviewing court on a Charter challenge. That is a calculated risk. In some cases the facts outside the “tear-away” will suffice to ground the warrant, but in other cases the Crown’s decision to hold back the “tearaway” and not to engage in the process of releasing a version edited to protect informants, etc. may be the difference between “good enough” and insufficient.
[3] "Number of Niagara Homicides At Least Triples in 2019", St. Catharines Standard, 12 December, 2019.
[4] "Preliminary Patterns in Circumstances Surrounding Opioid-Related Deaths in Ontario during the COVID-19 Pandemic", Ontario Drug Policy Research Network et al., November, 2020"