Court File and Parties

COURT FILE Nos: 21-1516-01/02 DATE: October 31, 2023

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-AND-

MICHELE ARNOLD & JEAN LAFONTAINE

Before: Justice M. G. March

Heard on: June 22, 2023

Reasons for Decision regarding Alleged Breaches of the Rights of Both Accused under Sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“the Charter”) and Seeking Exclusion of Evidence under Subsection 24(2) of the Charter

Released on: October 31, 2023

Counsel: Mr. Timothy McCann, Counsel for the Federal Crown Mr. Douglas Baum, Counsel for the Accused, Ms. Arnold Mr. Robert McGowan, Counsel for the Accused, Mr. Lafontaine

March, M.G., J.:

Introduction

[1] Michele Arnold (“Arnold”) and Jean Lafontaine (“Lafontaine”) stand charged with allegedly possessing, a) a variety of controlled drugs for the purpose of trafficking, b) a prohibited and dangerous weapon, specifically, a taser, and c) proceeds of crime.

[2] The charges stem from the execution of a search warrant on December 2, 2021. Prior judicial authorization was granted on November 29, 2021 under section 11 of the Controlled Drugs and Substances Act (“CDSA”) for police to enter 523 Moffat St., Unit 1, Pembroke, Ontario.

[3] Counsel for Arnold and Lafontaine contended that the section 8 and 9 Charter rights of both accused were violated because the search warrant obtained by the police was facially invalid and failed to meet minimum standards for its issuance.

[4] Counsel for the Federal Crown argued that the Information to Obtain (“ITO”) sworn in support of the issuance of the search warrant provided ample information to meet the test of reasonable grounds, or “credibly-based probability” that a controlled drug would be found inside 523 Moffat, Unit 1, Pembroke.

[5] Importantly, the statutory authority under which the search warrant was obtained, section 11 of the CDSA does not require reasonable grounds be shown that an offence had been committed contrary to the CDSA. Rather, the ITO need only show that a controlled drug and/or items used in the trafficking of a controlled drug such as scales, debt lists, cell phones, currency, etc. would be found inside the subject residence.

The ITO

[6] The search warrant in question was obtained through reliance upon an ITO sworn by Detective Constable Jean-Philippe St. Cyr (“St. Cyr”), a member of the Community Street Crime Unit of the Ontario Provincial Police (“OPP”) in Renfrew County, on November 29, 2021. At that point in time, St. Cyr had been with the OPP since 2013.

[7] St. Cyr had successfully completed police education courses, amongst them: a) drug recognition, b) Confidential Informant (“CI”) handling seminar, c) warrant services, d) intermediate CI handler, and e) physical surveillance.

[8] He authored “several” CDSA search warrants; however, he did not indicate in his ITO exactly how many.

[9] Based on his training, experience and personal knowledge, he believed that individuals involved in the trafficking of controlled substances would possess digital scales, packaging materials, communication devices and cash.

[10] He also indicated in his ITO that he had obtained information from a CI regarding Arnold’s and Lafontaine’s drug activity, which he set out for the justice of the peace who issued the search warrant for 523 Moffat St., Unit 1. Naturally, he was concerned with safeguarding information that could potentially identify the CI, or narrow the pool of people within which the CI belonged.

[11] The CI was “coded”, which meant essentially that he or she had registered with the OPP and was assigned an identification number.

[12] St. Cyr emphasized that the CI’s handler, another Detective Constable within the OPP, Detective Constable Renee Busschaert (“Busschaert”), had shared with him that the CI had never lied or intentionally provided misleading information to her knowledge. St. Cyr indicated as well that the CI’s information supplied to authorities in the past had been corroborated by police reports and observations. Minimal surveillance of 523 Moffat, Unit 1,was conducted by police on October 28, 2021.

[13] St. Cyr described the CI as being “well entrenched in the drug-subculture” of Renfrew County and surrounding areas. He or she was familiar with the appearance, packaging, consumption and trafficking methods of illicit drugs including cocaine.

[14] St. Cyr did not indicate whether or not the CI had a criminal record.

[15] Significantly, St. Cyr pointed out for the issuing justice of the peace that the CI had never provided information to police to assist in a previous investigation. This was his or her first time.

[16] St. Cyr went on to explain that in May 2021, members of the OPP initiated “Project Nield”, a police operation intended to be an “ongoing investigation targeting individuals responsible for the distribution of various illicit drugs, but primarily cocaine and methamphetamine” throughout Renfrew County.

[17] The Project contemplated the use of two undercover police officers (“UCO1 and UCO2”), as well as CIs to suss out the street and mid-level drug dealers who were ensuring the stable flow of drugs onto the streets.

[18] In August 2021, St. Cyr reviewed reports from an anonymous source provided to Crime Stoppers, an organization which pays a modest cash reward for information received, which is accurate, and which leads to an arrest or recovery of drugs or stolen property.

[19] St. Cyr explained for the issuing justice of the peace that the identity of callers who provide information to Crime Stoppers is unknown. Accordingly, St. Cyr was unable to attest to the credibility of the individual who provided the information.

[20] Nevertheless, the reports contained the following details about a woman named Arnold who lived at 523 Moffat St., Pembroke: a) she sells drugs from the residence, b) a lot of people attend at that residence on a daily basis, c) they do not stay long, and d) they come and go at all times of the day.

[21] On August 24, 2021, St. Cyr used police databases to discover that Arnold had a criminal record spanning from 1989 to 2015. It included at least one prior entry for a drug-related offence. Her last known address inputted as of June 29, 2021 was 1-523 Moffat St., Pembroke.

[22] Her last police contact was May 12, 2020, when she was stopped by members of the OPP Community Street Crime Unit while a passenger in a motor vehicle on Highway 17 in Whitewater Region, Ontario. She was arrested along with the driver for possession of cocaine for the purpose of trafficking. Upon a search of the vehicle, the police located one bag containing 6 ounces of suspected cocaine, one bag containing 2 ounces of suspected cocaine, 2-3/4 suspected fentanyl patches, a suspected debt list, $910 in cash and two cell phones.

[23] On May 13, 2020, the driver’s residence was searched and a further 36.5 g of cocaine, one codeine pill, one shotgun, one debt list and digital scales were seized.

[24] Upon entry of a guilty plea by the driver to the outstanding charges laid against him stemming from the discovery of the drugs, weapon and paraphernalia on his person and in his vehicle, all charges against Arnold were withdrawn.

[25] From a review of information obtained by undercover police operatives, St. Cyr learned that on September 23, 2021, one Roseanne Sylvester (“Sylvester”) introduced her boyfriend, Peter Goyette (“Goyette”) to UCO1. UCO1 asked Goyette to obtain 3.5 g of cocaine. Sylvester and Goyette took UCO1 in his vehicle to 523 Moffat St., Pembroke. Goyette told UCO1 that the cocaine would cost $300. Goyette asked for the money up front. When UCO1 hesitated, Goyette gave him or her a clear plastic bag with fentanyl in it as insurance that he would not steal UCO1’s money.

[26] Goyette then attended 523 Moffat St., Unit 1, Pembroke and returned with a clear baggie containing 3.4 g of cocaine which he gave to UCO1.

[27] Through the use of police databases and observations, St. Cyr indicated to the issuing justice of the peace that Arnold was living at 523 Moffat St., Unit 1, Pembroke, when Goyette attended at that address for cocaine on September 23, 2021.

[28] St. Cyr reviewed reports from other anonymous sources stating that a woman by the name of Michele lives at 523 Moffat, Pembroke and she sells drugs from that residence. The anonymous sources also reported a lot of people attending at the residence. St. Cyr acknowledged for the issuing justice of the peace that he could not assess the credibility, of course, of an anonymous source. Further, St. Cyr did not indicate the dates when the reports were prepared, nor when the incidents they chronicled occurred.

[29] On September 28, 2021, St. Cyr reviewed two CI handler “will states” authored by his colleague, Busschaert. The reports were based on information provided by the CI to his or her police handler in July 2021. The CI acquired the following information first-hand through personal knowledge and/or observations: a) Arnold is selling crack, b) she is on Moffat Street on the left-hand side in a house with three rentals in it, c) she drives an e-motorcycle, d) she has a dog, e) she is dealing cocaine, and f) a guy named (redacted) is at her place with her.

[30] On October 28, 2021, members of the OPP Community Street Crime Unit conducted surveillance in the area of Moffat St. in Pembroke. St. Cyr noted that the highlights of the operation were as follows: a) at 12:16, the surveillance commenced, b) at 12:35, a vehicle driven by a known member of the Pembroke “drug subculture” attended 523 Moffat St. for a quick visit, then proceeded away, c) at 13:09, another vehicle driven by a different member of the “drug subculture” attended at 523 Moffat, Unit 1 and knocked on the door to the residence. Arnold answered and pushed the visitor onto the porch; Arnold then exited and approached the passenger in the vehicle the visitor was driving, d) at 13:12, Arnold and the visitor entered the residence, e) at 13:24, Arnold and the visitor walked back to the vehicle; Arnold leaned in to talk to the passenger while Lafontaine was observed leaving the driveway of the residence on an e-bike, f) at 13:27, Arnold went back and forth between the vehicle and the residence twice, g) at 13:31, Arnold walked back to the passenger in the vehicle, h) the passenger and the visitor then left the residence in the vehicle, i) at 13:49, the passenger was also identified by police as a member of the Pembroke “drug subculture”, and j) the passenger was seen hunched over in the front seat of the vehicle a short while later while it was parked at a convenience store on Trafalgar Rd., and she appeared to be intoxicated by drugs.

[31] Based on the Project investigators’ observations made of Arnold going to and from that residence several times while conducting surveillance, St. Cyr believed that Arnold still resided at 523 Moffat St., Unit 1, Pembroke, when he swore to the ITO.

[32] Drawing on his experience as a Detective Constable, who had conducted numerous drug investigations, St. Cyr pointed out for the issuing justice of the peace that it is common for several individuals to attend locations for short periods of time where drugs are sold. Some individuals may attend several times per day, all of which was corroborated as happening at 523 Moffat St., Unit 1, Pembroke by police surveillance conducted on October 28, 2021.

[33] According to St. Cyr, Lafontaine was identified through police database queries as residing at 523 Moffat St., Unit 1, Pembroke, as well. The ITO does not, however, indicate if Lafontaine has a criminal record.

[34] Notwithstanding, on November 2, 2021, St. Cyr conducted a search of a police database to learn that Lafontaine was stopped by police on October 14, 2021 for a sobriety check. The vehicle he was operating failed to stop immediately despite being pursued by a fully marked police vehicle with its emergency lights and sirens activated. Lafontaine parked his vehicle in the driveway at 523 Moffat St., Pembroke.

[35] Lafontaine was the lone occupant of the vehicle at the time of the incident. During the search of his person following his arrest for failure to stop, $1570 in Canadian currency and 3 grams of suspected crystal methamphetamine were located and seized by police.

[36] Lafontaine was then rearrested for possession of a controlled substance. His vehicle was searched. A backpack and a sweater located on the passenger seat were searched. Seven grams of suspected fentanyl, packaging materials, a digital scale and a cutting agent were seized from the backpack. Lafontaine was then charged in addition with possession of a controlled drug for the purpose of trafficking.

[37] During the incident, Arnold exited her residence to ask officers on scene what was going on. She identified herself as Lafontaine’s girlfriend. She advised that he resided at 523 Moffat St., Pembroke.

[38] St. Cyr also discovered through his search of police databases that on October 17, 2021, police received a complaint from one Rose Smith regarding noise emanating from 523 Moffat St., Pembroke. Ms. Smith believed that a female living there was possibly named Arnold. Ms. Smith stated that people were coming and going to that place all the time. She stated that there were drugs in the female’s residence, but provided no further details. When police attended at 523 Moffat St., all was quiet and no further action was taken.

[39] Further, St. Cyr reviewed a report made on October 27, 2021, and learned that police officers were on general patrol duties on Moffat St. in Pembroke when they saw Arnold operating a motorized bike travelling northbound. The officers recognized her and were aware that she had an outstanding bench warrant for her arrest. They arrested her. She kept interrupting the officers while they were in the process of arresting her, and she stated, “I’ll give you my purple dealer”. Inside Arnold’s purse, the officers located a small clear baggie with a white powdery substance suspected of being cocaine and several cash bills in an open pouch on the back.

[40] On November 16, 2021, St. Cyr reviewed two further CI handler “will states” authored by Busschaert. The information contained in the reports was divulged by the CI to his police handler in November 2021. The information was acquired by the CI first-hand and was based on his or her personal knowledge and/or observations. The following specifics were provided to police: a) Arnold is selling crack and purple, b) (Redacted) bought crack cocaine from Arnold, c) it was in a clear bag, d) Arnold’s residence is on Moffat on the left-hand side, e) it is a two-story house with a balcony and units in it, f) Arnold’s unit is the one with the balcony and is a two-story, g) the backyard is gated, h) the house is clean inside, i) upon entry at the front door, the kitchen is to the right and the stairs are to the left, j) the living room is at the back, k) there is a patio glass door to the backyard, l) Arnold (redacted), m) “Jay” is 45-50 years old, and is a drug dealer, and n) Arnold drives a scooter.

[41] St. Cyr did not state in the ITO what “purple” is. He assumed likely that the issuing justice must know the street name for fentanyl.

[42] On November 17, 2021, UCO1 and UCO2 went to 332 Alfred St., Pembroke to purchase cocaine from one Meghan Lacourse (“Lacourse”). They were directed to speak with one Michael Greenfield (“Greenfield”) inside a detached garage on the property.

[43] Greenfield told UCO1 and UCO2 that “Jay”, who police later identified as Lafontaine, would be delivering cocaine in about 30 minutes. When Lafontaine arrived at 332 Alfred St., he sold 0.99 g of cocaine to UCO1 for $100.

[44] On November 18, 2021, UCO2 contacted Greenfield on his cell phone, the number for which he obtained the day prior, and asked for 1 gram of hard cocaine (“crack”) and 1 gram of soft cocaine (“powder”). UCO1 and UCO2 later attended at 332 Alfred St. and met Greenfield and Lafontaine in the same detached garage on the property. UCO1 purchased 1.47 grams of powder from Lafontaine for $100. UCO2 in turn bought 1.65 g of crystal methamphetamine from Lafontaine for $100.

[45] On November 19, 2021, Lafontaine contacted the Pembroke OPP detachment asking to have an officer standby and keep the peace while he retrieved some property from 523 Moffat St., Unit 1. The project investigators were already aware that Arnold had identified Lafontaine as her boyfriend on a prior occasion. However, Lafontaine did not follow through with his request for police assistance. St. Cyr inferred therefrom that the relationship between Arnold and Lafontaine did not end that day.

[46] On November 25, 2021, UCO1 and UCO2 met with Greenfield again at 332 Alfred St., Pembroke. They inquired about purchasing 3.5 grams of cocaine and 3.5 grams of methamphetamine. A short while later, Lafontaine arrived at the residence in a motor vehicle.

[47] Lafontaine thought that UCO1 and UCO2 wanted hard cocaine (crack). He took that type of drug out to sell; however, UCO1 and UCO2 clarified that they were interested in soft cocaine (powder). Consequently, Lafontaine took out a different bag to weigh out the requested amounts. Lafontaine went on to sell 3.43 grams of methamphetamine to UCO2 for $280, and 3.41 grams of cocaine to UCO1 for $280.

[48] Based on the information set out above for the issuing justice of the peace, St. Cyr swore that he had reasonable grounds to believe that the offences of possession for the purpose of trafficking in cocaine had been committed by Arnold and Lafontaine, and had been ongoing since July 2021.

[49] St. Cyr also swore that he had reasonable grounds to believe that the following items would be found inside 523 Moffat St., Unit 1, Pembroke, which would afford evidence of the offence of trafficking in cocaine having been committed: a) cocaine, b) cutting agents, c) scales, d) packaging materials, e) currency, f) documentary evidence of residency and/or ownership of 523 Moffat St., Unit 1, Pembroke, g) wireless communication devices, h) data storage devices (SIM cards) associated with the wireless communication devices, and i) debt lists.

Position of the Applicants

[50] Specifically, counsel for Arnold and Lafontaine contended that the warrant was based on useless information received from a CI, as well as insufficient and inconclusive surveillance conducted by police during the investigation of both accused.

[51] Based on a facial reading of the ITO, the warrant authorizing the search of 523 Moffat St., Unit 1, Pembroke should be quashed.

[52] Counsel for Arnold and Lafontaine further argued that the information set out for the justice of the peace who issued the warrant, as well as the police surveillance conducted of the subject residence, were neither compelling, nor credible, nor corroborated. In essence, the defence jointly argued that the warrant should not have issued, and the search of the subject residence therefore violated the section 8 and 9 Charter rights of both accused.

[53] Counsel for Arnold in his factum pointed out that there was no indication in the ITO of whether: a) the CI had a criminal record, b) the CI was being given some form of sentencing consideration for his participation in the police investigation, and c) the CI was receiving any other form of benefit.

[54] Counsel for Arnold and Lafontaine submitted that the absolute highest privacy interest attaches to one’s dwelling.

[55] On a facial review of the ITO, counsel for Arnold and Lafontaine contended that the search warrant ought not to have been issued by the justice of the peace. For the search of 523 Moffat St., Unit 1, Pembroke to be constitutionally valid, the ITO ought to have set out reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place searched. It simply did not.

[56] Accordingly, the search of 523 Moffat, Unit 1, Pembroke was a warrantless one. The invasion of Arnold and Lafontaine’s residence by state authorities on December 2, 2021, was serious. It had a substantial impact upon the Charter-protected interests of Arnold and Lafontaine.

[57] Although society has an interest in adjudicating cases on their merits, where the Charter breach is so serious and the impact on Arnold and Lafontaine is so significant, society’s interest must give way.

Position of the Respondent (Federal Crown)

[58] The Federal Crown submitted that in most ITOs, there are two or three pieces of information which becomes essential to the issuance of a search warrant. The ITO in question in this case was no exception.

[59] The Federal Crown therefore relied heavily upon what St. Cyr set out regarding police interactions with Arnold and Lafontaine on October 14, 2021, and November 25, 2021, respectively.

[60] On October 14, 2021, Lafontaine was followed by police to 523 Moffat St., Pembroke. Arnold exited the residence and identified herself as his girlfriend. She stated that Lafontaine lived with her. Lafontaine had on his person $1570 cash and 3 grams of crystal meth. In the backpack in his vehicle, which he solely occupied prior to being stopped by police, was 7 grams of fentanyl, packaging materials, a digital scale and a cutting agent.

[61] Further, on November 25, 2021, albeit at a different residence than 523 Moffat St., namely 332 Alfred St, Pembroke, and roughly a week before the issuance of the search warrant, Lafontaine sold to UCO1 3.43 g of methamphetamine for $280 and 3.41 g of cocaine to UCO2 for $280.

[62] In addition to those two police interactions, the Federal Crown argued that there was an array of information set out in the ITO which demonstrated that Lafontaine was a “current and regular drug trafficker”.

[63] Although the CI was lacking in terms of a track record, he or she did provide police with information that Arnold in November 2021 was selling crack and purple. The CI witnessed one such transaction involving the purchase of crack and was very familiar with the layout of her residence. Further, the CI identified “Jay”, or Lafontaine, as a person with whom she is associated, and gave a reference to his apparent age.

[64] The Federal Crown invited the Court to utilize common sense and to find that regular, recent drug traffickers need a place to keep their drugs and tools of the trade. It would be reasonable to believe that one’s residence would be the natural place to store such items absent evidence to the contrary.

[65] As corroboration for information obtained from the CI, the Federal Crown submitted for the Court’s consideration: a) the traffic witnessed by police going to and from 523 Moffat, Unit 1 on October 28, 2021, when police surveillance was conducted, b) the traffic to and from the residence witnessed by anonymous sources, c) UCO1’s attendance with Peter Goyette at the residence to purchase cocaine on September 23, 2021, d) the criminal record and history of police interaction with Arnold demonstrating her history with and knowledge of narcotics, and e) the nature of the relationship between Arnold and Lafontaine.

[66] In balancing the factors at play to determine whether there should be exclusion under section 24(2) of the Charter, the Crown emphasized society’s interest in an adjudication on the merits of the real evidence obtained from the search of Arnold’s and Lafontaine’s residence, namely the controlled drugs and cash acknowledged by the defence as being found and seized from within. The admission of it at their trial would not adversely affect the long-term repute in the administration of justice. The evidence was essential to the Crown’s case against Arnold and Lafontaine. Its very nature favoured its admission.

Issues

[67] The hearing into the alleged violation of Arnold’s and Lafontaine’s section 8 Charter right to be secure against unreasonable search and seizure raises the following issues: a) Was the information provided by the CI and anonymous sources compelling? b) Were the CI and anonymous sources credible? c) Was the information provided by the CI and anonymous sources corroborated by a subsequent police investigation? d) Assessing the ITO as a whole, did it disclose reasonable grounds for believing that there was within 523 Moffat St., Unit 1, Pembroke, a controlled substance, or anything which would afford evidence in respect of an offence under the CDSA? e) If Arnold’s and Lafontaine’s section 8 and 9 Charter rights were violated, how serious were the violations? f) What impact did the violations have on the Charter-protected interests of Arnold and Lafontaine? g) What is society’s interest in an adjudication on the merits of the case? h) Balancing the factors in e) through g) above, should the impugned evidence be excluded pursuant to section 24(2) of the Charter?

The Law

[68] In R. v. Brown, 2021 ONCA 119, Strathy C.J.O. articulated the concern which should be entertained by a justice who is considering issuing a search warrant based on an ITO where information is provided mainly by a CI. He wrote:

[32] Debot confirms that where the ITO is based primarily on the information obtained from a CI, the authorizing justice must make three inquiries: whether the information about the crime was compelling; whether the source of the information was credible; and whether the information was corroborated by the police before applying for a search warrant. These are not watertight inquiries. Weaknesses in one of the factors may be compensated by the strength of others. The “totality of the circumstances” must be considered in order to meet the standard of reasonable probability: Debot, at p. 1168; MacDonald, at paras. 6-7.

[69] Very recently, the Court of Appeal for Ontario in R. v. El-Azrak, 2023 ONCA 440 revisited the role of the reviewing justice in assessing the presence or absence of reasonable grounds for the issuance of a search warrant, where a s. 8 Charter breach is alleged by the occupier(s) of a home. Fairburn A.C.J.O. explained as follows:

[27] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37; R. v. Plant, [1993] 3 S.C.R. 281, at p. 292; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 17-18; and Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60.

[70] Further, she stated:

[94] Absent an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court must defer to a reviewing justice’s decision under Garofoli: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused, [2001] 1 S.C.R. xii. To be sure, reviewing judges work within a small orbit. They must not substitute their opinion for that of the issuing judge: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal refused, [2010] 1 S.C.R. ix; Garofoli, at p. 1452.

[95] The question is not whether the reviewing justice would have issued the warrant. The question is whether the issuing justice could have done so: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51-52; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Therefore, the focus of a Garofoli review is on whether there is reliable evidence that might reasonably be believed upon which an authorization could have issued: Garofoli, at p. 1452; Araujo, at para. 51.

[96] The “reasonable grounds to believe threshold” does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. It requires that the well-known standard of “credibly-based probability” be applied: Hunter, at pp. 167-68; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. The question for the issuing justice is whether the ITO sets out sufficient grounds to establish a reasonable belief that an offence has been committed and that there will be evidence of that offence located in the location to be searched.

[71] I will, of course, take guidance from the authorities set out above and apply the governing principles in analyzing the issues raised on the hearing of this Charter application.

Analysis

Was the information provided by the CI and anonymous sources compelling?

[72] At its root, the information provided by the CI regarding the activity of Arnold and Lafontaine was by no means intricately detailed. However, it did contain some specifics.

[73] It would appear, at first blush, that the CI’s assertions made in July 2021 that “Arnold is selling crack” and “she is dealing cocaine” are completely conclusory. St. Cyr did, nevertheless, in his ITO state that the CI’s information was acquired first-hand through personal observations. I take this to mean that the CI actually witnessed Arnold selling crack and dealing in cocaine.

[74] The CI also provided some description of the nature of the building in which Arnold lived (i.e. there were three rental units), in which one specifically Arnold resided (i.e. “on the left hand side”), and the name of the male with whom she lived.

[75] That she has a dog and drives an e-motorcycle is far from compelling information. Those facts would be readily observable to the most casual of observers such as her neighbours.

[76] The information supplied by the CI on the 2nd occasion in November 2021 to police was more compelling. The CI was able to share with police that: a) Arnold was selling 2 types of drugs (i.e. “crack and purple”), b) a named individual, although redacted, bought crack from Arnold in a clear bag, c) Arnold’s unit at 523 Moffat St., Pembroke house was a two-story with a balcony, d) her house was clean inside, and e) the layout was provided from the front door to the kitchen, the living room and the stairs to the second level.

[77] Clearly, the CI must have been inside Arnold’s residence to be able to witness what he or she did, and to have some appreciation for the floor plan of the unit.

[78] The anonymous sources, such as the caller to Crime Stoppers, provided information to police and spoke generally of the high number of individuals going to and from 523 Moffat at all times of the day and staying for short periods of time. The reports certainly are compelling in the sense that they are suggestive of rapid drug transactions taking place on a 24/7 basis.

Were the CI and anonymous sources credible?

[79] Given the lack of any track record police had established with the CI in question, and notwithstanding Busschaert’s assertion that the CI had never lied to her or provided her with intentionally misleading information, there is no real basis to assess the credibility of the CI. The same can be said of the anonymous sources.

[80] The information they provided to police assumed a ring of truth however, in my view, when it was observed by multiple sources with no seeming connection to one another.

Was the information provided by the CI and anonymous sources corroborated by a subsequent police investigation?

[81] On October 28, 2021, police conducted brief surveillance of 523 Moffat St. They observed members of the Pembroke “drug subculture” attend at the residence. Although no hand-to-hand transactions were witnessed by police, visitors to 523 Moffat stayed for relatively short durations. One such visitor was seen in an apparent drug induced state some 15 minutes after leaving the residence.

[82] UCO1 had also made an earlier trip to 523 Moffat St., Pembroke on September 23, 2021 to purchase cocaine. UCO1 witnessed first-hand where he was taken by Goyette to acquire the drug.

[83] Further, St. Cyr used police databases to learn that both Arnold and Lafontaine were residing at 523 Moffat Street, Unit 1, Pembroke. On October 14, 2021, Lafontaine stopped his vehicle in the driveway of that residence when pursued by police. Arnold when she exited the house, claimed that he lived there and was her boyfriend. At the time of his arrest and search by officers, Lafontaine was found in possession of a large quantity of cash and controlled drugs while en route to 523 Moffat St.

[84] Then, on November 19, 2021, Lafontaine himself called police requesting an officer attend at 523 Moffat St., Unit 1 to keep the peace while he removed some of his property from that residence.

[85] In my view, based on the reported observations made by the CI and anonymous sources to police, coupled with the interactions Arnold and Lafontaine had with the authorities in the lead up to the issuance of the warrant, St. Cyr had reasonable grounds to believe controlled substances would be inside 523 Moffat St., Unit 1, Pembroke, as would other things such as packaging material, scales and wireless communication devices to afford evidence of an offence having been committed under the CDSA.

Assessing the ITO as a whole, did it disclose reasonable grounds for believing that there was within 523 Moffat St., Unit 1, Pembroke a controlled substance, or anything which would afford evidence in respect of an offence under the CDSA?

[86] In my view, the ITO prepared by St. Cyr could have been fuller. It ought to have stated whether or not the CI had a criminal record, whether he or she was receiving some form of remuneration for the information which he or she was supplying to the authorities, and whether he or she was benefitting from a sentence consideration on outstanding charges, if that was the case. At the same time, it was sufficiently frank and fair in what it did detail.

[87] Most importantly, the ITO did disclose reasonable grounds for believing evidence of an offence contrary to the CDSA would be found inside the residence shared by Arnold and Lafontaine at 523 Moffat St., Unit 1, Pembroke.

[88] The test of ‘reasonable grounds for belief’ lies on a spectrum between proof beyond a reasonable doubt and reasonable suspicion. St. Cyr set out multiple factors which the issuing justice was entitled to consider in order to satisfy himself that the hurdle for reasonable grounds was surpassed.

[89] In essence, the reasons, listed below, for St. Cyr’s belief in the probability, that evidence of an offence contrary to the CDSA having been committed within 523 Moffat would be found at the time the search warrant issued for the home, was credibly-based.

[90] Firstly, in May of 2020, Arnold was stopped while travelling with a motorist in a vehicle which when searched by police, turned up a sizeable quantity of illicit drugs, cash and a suspected debt list. Even though the information was quite dated, the issuing justice of the peace was entitled to give it some consideration. While one should never be found guilty by association, the company one keeps can offer some reasonable basis for belief that a common, shared activity or enterprise is likely being jointly engaged in amongst known drug sellers and/or consumers. (see El-Azrak, supra, at paras. 17 and 97 – 101)

[91] Secondly, on October 14, 2021, Lafontaine is found in possession of a large quantity of drugs and cash when he failed to stop for police and is finally apprehended in the driveway of 523 Moffat. Arnold exits the residence and tells police that he is her boyfriend, and he lives with her.

[92] Thirdly, on October 27, 2021, Arnold was found in possession of suspected cocaine and several cash bills in her purse when stopped by police aware of an outstanding bench warrant for her arrest. She offered to give up her “purple dealer” to avoid being prosecuted herself. Clearly, she knew people and the rules of the game played by certain users and/or dealers in illegal drugs who get caught.

[93] Fourthly, although the CI was new to the role of acting in that capacity for police, on two occasions he or she was able to provide information to his or her handler, based on first-hand observations, that Arnold was dealing in cocaine. In November 2021, Arnold was seen by the CI selling illicit drugs to an individual he or she was able to name. The CI was able to provide details about the interior of Arnold’s home. He or she spoke of the association that existed between Arnold and Lafontaine. He or she witnessed the activities in which both Arnold and Lafontaine engaged with visitors to their residence.

[94] Fifthly, another anonymous source in August 2021 provided a tip to Crime Stoppers about seeing multiple visitors coming to and going from 523 Moffat after brief stays and at all times of the day.

[95] Sixthly, on October 17, 2021, Rose Smith, the neighbour who complained about the noise emanating from 523 Moffat, saw the same type of traffic to and from the residence and reported it to police.

[96] Seventhly, UCO1 went to 523 Moffat with Goyette in September 2021 and obtained cocaine. Goyette was in and out of the residence quickly as well.

[97] Eighthly, the police, through surveillance conducted on October 28, 2021, through information obtained through anonymous sources, and through other interactions Arnold and Lafontaine had with the authorities, were able to plainly see that Arnold’s and Lafontaine’s residence was frequented by members of the Pembroke drug subculture on a routine basis. The traffic to and from the residence with brief stays by those who entered was highly indicative of illegal drugs being acquired or purchased inside.

[98] Ninthly, UCO1 and UCO2 bought cocaine from Lafontaine on two occasions not long before the issuance of the search warrant (i.e. November 18 and 25, 2021). On the latter occasion, they watched him use scales to weigh the desired amounts. It was not unreasonable for the issuing justice to infer that more drugs and other tools of the trade would be found inside Lafontaine’s known residence, confirmed as such by his partner, Arnold. While a smart drug dealer may see fit to store his or her drugs in a stash house, not every drug dealer is possessed of the same level of sophistication.

[99] Having found that reasonable grounds existed for believing, on a subjective and objective basis, for the issuance of the search warrant in question, there can be no violation of the s. 8 Charter rights of both Arnold and Lafontaine.

[100] Nor can there be a violation of Arnold’s s. 9 Charter right not to be arbitrarily detained.

If Arnold and Lafontaine’s section 8 and 9 Charter rights were violated, how serious were the violations?

[101] With my finding that there was no infringement or denial of the s. 8 and s. 9 Charter rights of Arnold and Lafontaine, the issues set out in para. 66 e) to h) above are rendered moot.

Conclusion

[102] For the reason set out above, I must dismiss the Charter application brought by Arnold and Lafontaine.

DATED: October 31, 2023

March, M.G., J.