Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2021 12 21 COURT FILE No.: Lindsay 20-0760
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RANDY LAUGHLIN, SABRINA MCISAAC & TRISTRAM ROBERTSON-LEE
Before: Justice S. W. Konyer
Heard on: November 8, 10, 12, December 3, 15, 2021 Reasons for Judgment released on: December 21, 2021
Counsel: Ms. S. Repka...................................................................................... counsel for the Crown Mr. P. Affleck.................................................. counsel for the accused Randy Laughlin Mr. B. Jeffries................................................ counsel for the accused Sabrina McIsaac Mr. R. Chartier................................. counsel for the accused Tristram Robertson-Lee
KONYER J.:
Decision on Garofoli Application
[1] Mr. Laughlin, Ms. McIsaac and Mr. Robertson-Lee are jointly charged with firearms related offences. The charges arose following the execution of a s.487 general warrant at the residence of Mr. Laughlin and Ms. McIsaac at 20 Queen Street in the town of Lindsay on July 26, 2020 and the recovery of a firearm.
[2] In brief, the Information to Obtain (ITO) sworn by police to obtain the warrant states that reasonable grounds existed to believe that Mr. Laughlin was in possession of an unlawful firearm, and that the firearm would be found in the residence. The affiant claimed that the police were in possession of information from several sources that Mr. Laughlin had recently been in possession of a firearm, that he was a known drug dealer, that he was known to carry a firearm, that he was a suspect in a shooting from earlier in the day, that he was seen in possession of a firearm at a local motel shortly before police applied for the warrant, that he had been arrested without the firearm, that the residence had been cleared and that gun cleaning equipment was seen inside. On this basis, a search warrant was granted.
[3] Mr. Robertson-Lee brought an application to review the search warrant, known as a Garofoli application: R. v. Garofoli, [1990] 2 S.C.R. 1421. The Crown conceded that he had standing to bring the application. He argued first that the ITO contained false and misleading information which should be excised on the review. The Crown conceded that the ITO did contain a good deal of information that was incorrect, and this material was excised on consent.
[4] The defence also argued that the information related to the gun cleaning materials found inside the residence was obtained illegally as the result of an unconstitutional search. The Crown argued that the search was lawful under the police power to search incident to Mr. Laughlin’s arrest. I previously ruled that the search was unlawful, and that this evidence was unconstitutionally obtained. This information was also excised from the ITO on this review.
[5] The Crown successfully applied to amplify the record in order to correct some information contained in the ITO. I also granted leave to the defence to cross examine the affiant on his failure to accurately describe outstanding charges faced by Mr. Laughlin at the time the warrant was sought. At the time, he was facing several charges including the unlawful possession of a knife. The ITO, however, asserted that he was facing a charge of unlawful possession of a firearm or ammunition.
[6] Once the redacted ITO was amended as I have described, the Crown conceded that reasonable grounds to issue the warrant no longer existed on the basis of the remaining information. The ITO which was disclosed to the defence was heavily redacted in order to protect the identity of a confidential informer and an anonymous tipster. The Crown then applied, under Step 6 of the Garofoli procedure, to have me review and consider the unredacted information contained in the ITO. The defence was provided with a judicial summary of the unredacted information in order to be able to challenge the basis for the warrant.
[7] The parties are in agreement on the law. The prerequisites for a valid warrant under s.487 of the Criminal Code are that reasonable grounds exist to believe that an offence has been committed, and that there is evidence of that offence in the place to be searched. If reasonable grounds do not exist for either belief, then the warrant was not valid and the resulting search would have been unreasonable within the meaning of s.8 of the Canadian Charter of Rights and Freedoms. The warrant is presumptively valid, and Mr. Robertson-Lee bears the onus of establishing that the warrant was not validly issued on a balance of probabilities.
[8] The question I need to ask myself on this review is not whether I would have issued the warrant, but rather whether the warrant could have issued based on the record before the issuing justice, as amended on the review. In other words, based on the record now before me, I have to ask whether reasonable grounds continue to exist for a belief that Mr. Laughlin had committed a firearms possession offence, and whether reasonable grounds exist for a belief that evidence of this offence was in the 20 Queen Street residence. Although I am not to substitute my belief for that of the issuing justice, it is also clear based on the amount of material excised from the ITO that I am making these determinations on the basis of a very different record.
[9] In making these determinations, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the issuance of the warrant. The defence here argues that the amount of false or misleading information contained in the ITO supports an inference that the affiant was, at a minimum, unacceptably careless in drafting the document. This tends to undermine the credibility of the information which remains in the ITO on review, which is relevant to my determination of whether reasonable grounds continue to exist.
[10] Reasonable grounds means a “credibly based probability”, which lies between suspicion and proof on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72 at para. 81. In reviewing the ITO for sufficiency I must take a holistic and common sense approach. The ultimate question is whether the issuing justice could have found that the information contained in the ITO, and the reasonable inferences that could have been drawn from it, gave rise to a credibly based probability that Mr. Laughlin was in possession of a firearm at all; and if so, whether a credibly based possibility existed that he had left the firearm inside the Queen Street residence: R. v. Herta, [2018] ONCA 927, at para. 21.
[11] In this case, the parties agree that the answer to these questions depends upon my assessment of information provided by a confidential informer and an anonymous tipster. In evaluating whether such information provides reasonable grounds, I must consider whether the information was compelling, whether the source of the information was credible, and whether the information was corroborated by police investigation: R. v. Debot, [1989] 2 S.C.R. 1140, at para. 60. It is not necessary to satisfy every element – weakness in one area can be offset by strength in another.
[12] If I do find that a sufficient basis continues to exist for the issuance of the warrant, the defence asks me to exercise my residual discretion to set aside the warrant because the conduct of the police in obtaining the warrant was subversive of the pre-authorization process: R. v. Paryniuk, 2017 ONCA 87, paras. 66-70.
[13] If the defence is successful and the warrant is set aside due to lack of reasonable grounds or through the use of my residual discretion, the parties agree that a s.8 Charter breach is made out. I would then need to determine if admitting the evidence would bring the administration of justice into disrepute, pursuant to s.24(2) of the Charter. I did not hear submissions on this issue, as the Crown asked for an opportunity to call further evidence in the event the warrant is set aside. These reasons, therefore, are restricted to the s.8 issue only.
[14] In order to address the issues raised, I will first detail the information contained in the redacted ITO, including information that was excised on review and information that was added on the review. I will then consider whether reasonable grounds exist based on the amended record to believe that Mr. Laughlin had committed a firearms possession offence. If the answer to this question is yes, I will go on to consider whether reasonable grounds exist to believe that evidence of that offence would be found in the residence. If the answer to that question is also yes, then I will go on to consider whether this is an appropriate case to exercise my discretion to set aside an otherwise valid warrant.
Summary of the ITO as amplified on review
[15] It is important to understand the quantity and nature of the erroneous information that was placed before the issuing justice. This will become relevant to my determination of the credibility of the information remaining after excision, and my determination, if necessary, as to whether to exercise my residual discretion.
[16] The ITO in this case was quite brief, comprising 35 paragraphs over 8 pages. Of that total, only 19 paragraphs detail the affiant’s grounds including information received from a confidential informer, an anonymous tipster, and police investigation. The Crown agreed that several of those 19 paragraphs contained inaccurate information. The inaccuracies were significant. For example, paragraph 11 states that “police have been receiving ongoing information that Randy Laughlin is in possession of a .38 calibre revolver, which he has shown several individuals in the Lindsay area.” This inaccurate statement was excised on consent.
[17] Paragraphs 13 and 25, plus part of paragraph 34 describe an investigation of a shooting that occurred earlier on the same day the police sought the warrant. These paragraphs allege that Mr. Laughlin was seen fleeing from the scene of the shooting, and that he was a suspect in the shooting. The defence, however, provided copies of disclosure material which reveal that witnesses told police that Mr. Laughlin fled the scene before the shooting, and that the affiant was aware of this fact when he prepared the ITO. [1] These paragraphs were also excised on consent.
[18] The Crown was permitted to amplify paragraph 17(d) to correct errors. This paragraph stated that Mr. Laughlin was “awaiting disposition” on several charges, including possession of a firearm or ammunition. The record was amplified to clarify that these charges were still in the pre-trial stage to eliminate any possible inference that Mr. Laughlin had been found guilty. The record was also amplified to correct the actual charges that were outstanding at the time the warrant was sought. Mr. Laughlin faced charges including the unlawful possession of a knife, not a firearm. The defence was permitted to cross-examine the affiant on this issue. He maintained that this was a simple drafting error, and resisted the suggestion that he was careless or had deliberately tried to mislead the issuing justice.
[19] Further, I also excised information from the ITO on the basis that it was obtained as a result of an unconstitutional search of Mr. Laughlin’s residence after his arrest. Specifically, the ITO states that Mr. Laughlin was arrested along with Ms. McIsaac outside the Queen Street address for unlawful possession of a firearm. They were searched and no firearm was recovered. The police knew the Queen Street address was Ms. McIsaac’s residence, and they also knew that she was Mr. Laughlin’s surety and that he was required to live there as a condition of his release order which came into effect 4 days earlier. After finding no gun on Mr. Laughlin or Ms. McIsaac, police entered the residence in order to “clear” it, and observed gun cleaning paraphernalia in plain view, all of which was disclosed to the issuing Justice. The Crown argued that the police entry into the home was a lawful exercise of their search incident to arrest powers, but called no evidence that the officers were conducting a search incident to arrest. In fact, the ITO states that the police had entered the home to clear it of people for reasons of officer and public safety, relying on exigent circumstances. I ruled that the police did not have lawful authority under either their search incident to arrest powers or on the basis of exigent circumstances to enter the home without prior judicial authorization. Thus, the observation of gun-cleaning paraphernalia was unconstitutionally obtained evidence, and was excised from the ITO.
[20] In summary, the issuing Justice was provided with misleading information that Mr. Laughlin was awaiting disposition on charges including a firearms offence, that he was a suspect in a shooting earlier in the day, and that the police had ongoing information that he was in possession of a firearm which he had shown to several people. The issuing justice was also provided with unconstitutionally obtained evidence that gun cleaning paraphernalia was found inside the residence. All of this information was excised on review.
[21] The Crown also applied successfully to have me review and consider the redacted information after providing the defence with a judicial summary of that information. At the conclusion of this process, the information before me on this review can be summarized as follows:
- Mr. Laughlin was known to reside at 20 Queen Street, Lindsay with Ms. McIsaac.
- He had a criminal record including trafficking in drugs, possession of drugs for the purpose of trafficking and possession of a firearm. No dates were provided for the entries on his record, nor was a copy of the record provided.
- He was facing charges including possession for the purpose of trafficking and unlawful possession of a knife. The date of these alleged offences was not provided.
- The police received information from a confidential informer regarding Mr. Laughlin and a firearm and drug trafficking activity. The timing of this information was disclosed. The nature of the relationship, if any, between the informer and Mr. Laughlin was not disclosed. The issuing justice was told whether the information was based on firsthand knowledge. The issuing justice was provided with information about the informer’s history with police, and their motivation. A summary of the informer’s record was also provided, though this did not include date(s) of conviction(s) or sentence(s) imposed.
- A worker from a local homeless shelter told police that they received information from a client that Mr. Laughlin and Ms. McIsaac had attended a local motel being used by the shelter during the pandemic on July 26. They booked a room, and the client saw Mr. Laughlin in possession of a .38 revolver at about 6:00 p.m. No information about the tipster’s identity, background or motivation was provided. No information about any police investigation of the tip was provided.
- Mr. Laughlin and Ms. McIsaac were arrested outside their residence at 20 Queen St. later that same evening. When they were searched incident to arrest, no firearm was located.
- A number of assertions by the affiant, including that:
- “Randy Laughlin is flagged as armed and dangerous, and violent.”
- “Drug traffickers generally carry or keep close a firearm to prevent robbery, or intimidation for those who owe them money.”
- “Randy Laughlin is a career drug trafficker, with a history of carrying firearms. Individuals in the criminal subculture are generally known to keep their firearms on their person, or hidden in a readily accessible place within their residence. The firearms are generally used by drug traffickers to prevent robbery, and are generally quite expensive on the street. Thus, firearms are rarely left unattended in a place they may be stolen.”
- The front door to the residence at 20 Queen Street was damaged and unable to be secured at the time of the arrest of Mr. Laughlin and Ms. McIsaac.
[22] I now turn to a consideration of whether reasonable grounds existed to believe that Mr. Laughlin had committed a firearms possession offence.
Do reasonable grounds exist to believe an offence was committed?
[23] The determination of this issue will depend largely on an assessment of the information provided by the confidential informer and the anonymous tipster. Absent this information, it is clear that a credibly based probability that Mr. Laughlin was in possession of a firearm does not exist. His criminal history coupled with the bald assertions of the affiant that drug dealers carry firearms on their person cannot constitute reasonable grounds. Otherwise, Mr. Laughlin would become a “walking, ready-made grounds for belief”, a proposition rejected by the Ontario Court of Appeal in similar circumstances: R. v. Herta, supra, at para. 51. I will therefore have to consider whether the information provided by each source was credible, compelling and corroborated.
[24] There is a basis to assess the credibility of the confidential informer. Information, though incomplete, about their history of providing actionable tips to police was disclosed to the issuing justice. A reasonably fair summary of their criminal record was disclosed. Their motivation for providing information was disclosed. Together, this provides a basis upon which the issuing justice could have assessed their credibility.
[25] In my view, the information provided by the confidential informer was moderately compelling at best. It was generalized rather than particularized, and disclosed no details about the relationship, if any, between the informer and Mr. Laughlin. Information about whether the informer’s observations were firsthand was provided.
[26] The information provided by the confidential informer was largely uncorroborated. The police investigation did not corroborate the allegation that Mr. Laughlin was engaged in drug trafficking at the time. Although he has a criminal record for drug trafficking and firearms offences, the cogency of that information depends on the recency and similarity of the convictions to the matter under investigation: R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673 (C.A.), at para. 23. In this case, no details of the nature of the prior related convictions were disclosed to the issuing justice, nor were the dates of conviction. In those circumstances, the record provides weak corroboration at best.
[27] With respect to the information provided by the anonymous tipster, there is no basis upon which the issuing justice could assess its credibility. The source of the information has no known track record, and their history and motivation are unknown. Further, it is double hearsay information, provided to the police not by the person who made the observations, but by a person to whom those observations were first reported. As Paciocco J (as he then was) held in R. v. Floyd, 2021 ONCJ 417, this “raises acute issues as to the credibility of the source of this information”: para. 41. Further, “the risk of false allegations is particularly significant when the tipster is shielded by absolute and impenetrable immunity”: R. v. Baldwin, [2007] O.J. No. 3781, at para. 52.
[28] I do find that the information provided by the anonymous tipster was compelling. The date, location and time of the observations were described with precision. The observations were firsthand. The firearm which the tipster claimed to have seen was described in some detail.
[29] The information was, however, entirely uncorroborated by police investigation. Nothing in the ITO suggests that police took basic investigative steps to confirm this information by, for example, checking with the motel to see if Mr. Laughlin or Ms. McIsaac had in fact booked a room. No inquiries were made to determine whether the tipster was a different person than the confidential informer, which would have made this information more or less compelling, depending on the answer.
[30] The Crown argues that the information provided by the confidential informer and the anonymous tipster is mutually corroborative. Clearly, the logic is attractive: if two people independently make similar observations, that fact strengthens the reliability of each. However, as was stated in Floyd, supra, “[o]ne of the key things required for meaningful confirmation is that the information must come from different sources and must truly be independent”: para. 79. There is nothing in the ITO capable of providing the issuing justice with comfort that the information provided by these two sources was truly independent. Therefore I am unable to find that their observations are mutually corroborative.
[31] In conclusion, the information from the anonymous tipster, though compelling, lacked credibility or corroboration. The information from the confidential informer about Mr. Laughlin’s possession of a firearm could, however, be said to be credible, moderately compelling, but largely uncorroborated. Since deficiencies in one area can be made up by strengths in others, it is my view that a sufficient if thin basis exists for a finding of a credibly based probability that Mr. Laughlin would be in possession of a firearm. Since it is not my role to substitute my view for that of the issuing justice, I must confirm their finding that reasonable grounds existed to believe that Mr. Laughlin had committed the offence of unlawful possession of a firearm.
[32] I now turn to a consideration of whether reasonable grounds existed to believe that evidence of that offence would be found in the 20 Queen Street residence.
Do reasonable grounds exist to believe that evidence of the offence would be found in the location to be searched?
[33] I reach a different conclusion on this issue for three reasons. First, there is nothing in the ITO connecting the firearm to the 20 Queen Street residence other than the fact that Mr. Laughlin lived there. This is similar to the scenario in R. v. Herta, supra, where grounds to believe that a firearm would be in a residence were that a confidential informer said the accused was in recent possession of a firearm, that he would not go anywhere without it, and that he was presently inside the residence the police sought to search. In this case, grounds to believe that a firearm was in the residence are the links between the firearm and Mr. Laughlin discussed above, the assertion that he always carries the gun or keeps it secured, the fact that he had just emerged from the residence and was not in possession of the firearm when arrested. The inference that the firearm would be in the residence depended upon the credibility of the assertion that Mr. Laughlin always had the gun on him or kept securely. This claim lacked any details, making it impossible to meaningfully assess: Herta, at para. 47. Further, the ITO disclosed that the residence was unsecured at the time the warrant was sought, which undermines the affiant’s claim that it was a likely location for the firearm. In my view, there is nothing in the ITO that would elevate the belief that the firearm was inside the residence from a suspicion to a credibly based probability.
[34] Second, the link between Mr. Laughlin and the firearm was seriously undermined by the fact that he did not possess it at the time of his arrest. The grounds set out in the ITO as a whole rely on Mr. Laughlin’s criminal history coupled with tips about recent possession of a firearm. The only investigative step taken by police to confirm the tips was the arrest and search of Mr. Laughlin. The fact that the search produced nothing can only mean one of two things – he had left the firearm somewhere, or he never had the firearm in the first place. In my view it is impossible to discount the very real possibility that the information provided by the confidential informer was simply not reliable. As a matter of logic and common sense this reduces the likelihood that the firearm would be located inside the residence.
[35] Third, the record on review provides me with information that was not known to the issuing justice – namely the extent of the misleading information contained in the ITO. The issuing justice was misled about the nature of the outstanding charges faced by Mr. Laughlin and their similarity to the offence under investigation, about Mr. Laughlin being a suspect in a shooting from earlier the same day, and about Mr. Laughlin showing a firearm to several people. Had the issuing justice known that all of this information was false or misleading, they would have been required to approach the remaining information with caution, particularly the bald and unsupported conclusory statements of the affiant. This would have seriously undermined the reliability of the affiant’s assertions that Mr. Laughlin constantly carried a firearm or kept it secured in his residence.
[36] Taken as a whole, the information contained in the ITO on the record before me on this review is reasonably capable of supporting nothing more than a suspicion that the 20 Queen Street residence contained a firearm. The information does not support a credibly based probability that the residence contained evidence of a firearms offence. On this basis the warrant could not have issued, and the resulting search was unreasonable. Mr. Robertson-Lee has established a breach of his s.8 Charter right to be secure from unreasonable search and seizure.
[37] Given this finding, it is not necessary for me to also decide whether this would have been an appropriate case to exercise my residual discretion to invalidate the warrant on the basis that the affiant subverted the prior judicial authorization process. That said, I have serious concerns about the process undertaken in this case. The affiant swore to the issuing justice that he understood his obligation to make full, fair and frank disclosure, yet the review disclosed a degree of carelessness towards this obligation that is troubling. The defence argument that this is a case where the judicial authorization process has been subverted by the conduct of the affiant has merit.
[38] At the Crown’s request, I deferred evidence and argument on the s.24(2) issues until after my ruling on the s.8 application. I will now hear from the parties as to whether the admission of the evidence seized here would bring the administration of justice into disrepute.
Released: December 21, 2021 Signed: Justice S. W. Konyer