ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11007
DATE: 2012-08-08

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KEVIN GORMAN and WENDY GORMAN Applicants

D. Moffat, for Her Majesty the Queen.

P. M. Behr, for Kevin Gorman and as agent for J. M. Brown. J. M. Brown, for Wendy Gorman.

HEARD: May 17, 2012.

REASONS FOR ORDER

m c DERMID, J.:

THE APPLICATION:

[ 1 ] The applicants are charged with producing cannabis marijuana contrary to s. 7(1) of the Controlled Drugs and Substances Act and with unlawfully possessing over 30 grams of marijuana contrary to s. 4(1) of the said Act on or about September 9, 2010 at the Municipality of Thames Centre.

[ 2 ] Mr. Behr moves before trial pursuant to s. 24 (2) of the Canadian Charter of Rights and Freedoms for an order to exclude evidence of the 19 marijuana plants seized by members of the Ontario Provincial Police from the applicants' residence at 2522 Catharine St. at the Municipality of Thames Centre on or about September 9, 2010 on the ground that the information used to obtain the search warrant was insufficient in law and that the seizure was therefore unreasonable and violated the applicants' rights under s. 8 of the Charter.

[ 3 ] Mr. Moffat submits that the search was reasonable and lawful, that there was no breach of the applicants' s. 8 rights and that the evidence obtained as a result of executing the warrant should be ruled admissible. However, he conceded that both applicants lived at 2522 Catharine St. and, therefore, had an expectation of privacy sufficient to grant them standing to bring this application. At the preliminary inquiry, the Crown consented to have the investigating officer, Detective Constable Onslow, cross-examined by defence counsel. He was the sole witness at the preliminary inquiry. The applicants were then committed for trial on consent.

THE MAIN ISSUE:

[ 4 ] The main issue in this application is whether Detective Constable Onslow had reasonable grounds to obtain the search warrant.

THE FACTS:

[ 5 ] The relevant facts are set out in the applicants' factum in paragraphs 4 to 25 inclusive, as amplified by paragraphs 1 to 15 of the respondent’s factum. In addition, Mr. Behr points out that one marijuana plant was found in the home. Also, the transcript of Detective Constable Onslow's testimony at the preliminary inquiry was tendered along with the ITO he swore on September 9, 2010.

[ 6 ] Detective Constable Onslow, a trained drug investigator with the Ontario Provincial Police who had investigated over 150 drug-related incidents and authored 25 search warrants or judicial authorizations, received a Crimestoppers’ tip on September 8, 2010 regarding marijuana being grown at 2522 Catharine St. On September 9, 2010, he sought and obtained a s. 11 Controlled Drugs and Substances Act warrant for the property, garage and residence at that address.

[ 7 ] A summary of the information provided by the tipster is set out in paragraph 10 of the applicants' factum. At no time did Detective Constable Onslow speak personally with the tipster. Rather, the information was provided to him indirectly through Crimestoppers.

[ 8 ] Detective Constable Onslow took the following steps to corroborate the tipster's information:

1. He conducted a search of MTO records and confirmed the listed address for Kevin Gorman was 2522 Catharine St.

2. Checks of CPIC, NICHE RMS and PIP revealed that Kevin Gorman was convicted in 2001 for production of marijuana as a result of evidence obtained from the execution of a Controlled Drugs and Substances Act search warrant at 2522 Catharine St. and that the applicants were listed as residing at 2522 Catharine St. The NICHE inquiry revealed that 86 marijuana plants in various states of growth were located inside the residence at that time as well as equipment used for growing marijuana indoors.

3. The CPIC search also showed that Kevin Gorman’s criminal record comprised 13 convictions from 1984 to September 8, 2010, including assault and possession of a weapon.

4. He confirmed the description and occupation that the tipster provided for Kevin Gorman by consulting Kevin Gorman's profile photographs and information on Facebook.

5. He drove by the residence to confirm the description of the home the tipster had given where the marijuana was being grown.

6. He made a PARIS inquiry and found that a 2003 blue Chevrolet pickup truck was registered to the applicant, Wendy Gorman. The tipster had described this seven-year-old vehicle as "a newer blue four-door Chevrolet pickup truck".

[ 9 ] Detective Constable Onslow's investigation was unable to confirm the following information provided by the tipster:

1. That there were "about 16 marijuana plants growing and they are about 5 feet tall" … located "…outside the garage on the left side behind a small gate". He drove by the residence but was unable to see any marijuana plants from the roadway.

2. That the tipster "had first-hand knowledge of the marijuana plants" as he claimed. As noted, he never spoke personally with the tipster.

3. That “There are two big dogs on the property that are friendly.” He never saw any dogs on the property.

4. That Kevin Gorman "… sells and uses what he grows". He had no personal knowledge whether this was true or not.

5. That Kevin Gorman drove a 2003 blue pickup truck because he never saw the truck. His knowledge of the truck was obtained from his PARIS inquiry.

6. That "… the suspect sells to young kids". Again, he had no personal knowledge whether this was true or not.

[10] Mr. Behr also notes the following:

1. Although the searches Detective Constable Onslow conducted showed the applicants residing at 2252 Catharine St., he never personally saw either applicant at the address to confirm that they actually lived there. However, in my opinion, this position is inconsistent with the defence position that, as residents of the premises, the applicants had an expectation of privacy in it and, therefore, had standing to bring this application. As a result, I give no effect to this submission.

2. In the ITO, Detective Constable Onslow set forth the following as one of the items of information the tipster provided, “Tipster has seen the plants as recently as [date excised] 2010.” For whatever reason the redaction was made, there is no evidence that the marijuana plants were growing at 2252 Catharine St. on September 9, 2010 the date upon which Detective Constable Onslow swore the ITO.

3. Paragraph 31 of the ITO states, "I have verified the information provided by the crime stoppers tipster and found it to be accurate and truthful. I have found no instances where the information has been found to be incorrect or misleading." As noted above, this is not entirely true because there were several items of information provided by the tipster that Detective Constable Onslow was unable to verify.

4. A seven year old pickup truck cannot reasonably be described as "a newer vehicle".

[11] At the preliminary inquiry, Detective Constable Onslow agreed that the Crimestoppers' organization "guarantees anonymity to any tipster" and that, accordingly, he never spoke personally with the tipster. To his knowledge, the tipster was "either untried or untested with respect to giving information on previous occasions". He agreed with respect to the information obtainable from Facebook that a person could, for example, post a fictitious address and photographs of some person other than the account holder. He also agreed that this information was "in the public domain" and could be checked by any member of the public. He confirmed that the description of the residence at 2522 Catharine St. could be confirmed by anybody who drove by it. He testified that he would not have been able to confirm whether marijuana was growing outside the home even if he had "done several drive-bys" because of a large fence located on the property. His surveillance consisted of driving by the residence twice: "… once going in one direction and once coming back the other way" on the same day.

THE LAW:

[12] The test I must apply is set out in R. v. Morelli [1] in paragraphs 39 and 40:

[39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168).

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[13] The following passages from the decision in R. v. Hosie [2] also provide guidance:

11 In my view, the trial judge erred in holding that the information to obtain the search warrant in this case was sufficient to support the issuance of the warrant. As it was put by Dickson J. in Hunter et al. v. Southam Inc. 1984 33 (SCC), (1984), 14 C.C.C. (3d) 97 at 115 (S.C.C.), the state's interest in detecting crime prevails over the individual's interest in being left alone and a search warrant may issue where "credibly-based probability replaces suspicion". The material supplied by Constable Doucette in appendix "A" as amplified by her evidence on the voir dire did not cross the threshold into credibly-based probability.

12 Where, as in this case, the sufficiency of the information depends largely upon information supplied by a confidential source, the test to be applied by the reviewing court has been explained by Wilson J. in R. v. Debot 1989 13 (SCC), (1989), 52 C.C.C. (3d) 193 at page 215 (S.C.C.). Although Wilson J. was there discussing the grounds to justify a warrantless search, the same principles apply in reviewing the sufficiency of a search warrant.

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

15 As Wilson J. said in Debot, supra at page 218, "the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater". Since in this case the credibility of the informants cannot be assessed and few details were supplied, a relatively higher level of verification was required. The validity of the warrant thus depends upon the sufficiency of the police investigation to corroborate the informer's tip as set out in paragraph 3. For ease of reference I will repeat that crucial paragraph:

A check with Windsor Utilities Commission on September 8, 1993 confirms that George HOSIE resides at 1498 Everts St. and that he along with Mary SMITH have been paying the hydro bill since March 1993. HOSIE'S hydro bills appear to be significantly larger than normal.

[14] Also, the following passage from R. v. Garofoli [3] is apposite:

68 Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that must be put before a judge issuing an authorization for electronic surveillance. I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

ANALYSIS:

[15] The information set forth by Detective Constable Onslow in the ITO he swore comprised the Crimestoppers’ tip and details of his subsequent investigation.

[16] In my opinion, the tip meets the required “degree of detail” and was “compelling”. It gave the following specifics:

1. The address where Mr. Gorman lived and where the offence was being committed.
2. Mr. Gorman’s name and a detailed physical description of him.
3. The type and colour of the house where he lived.
4. His place of employment and his hours of work.
5. The type and colour of the vehicle he drove.
6. The number of plants the tipster related that he personally saw at the premises, where they were located, how they were planted and how tall they were.
7. Information that Mr. Gorman “sells and uses what he grows”.

[17] The informer’s source of knowledge was stated to be his personal observation.

[18] Because the informer was unknown to the police and because the tip had been relayed by Crimestoppers, Detective Constable Onslow had no opportunity to talk to the informer and, therefore, no opportunity to confirm the reliability of the information he provided or to question him.

[19] Therefore, he conducted an investigation as outlined in paragraph [8] above to try to corroborate the tip. His investigation failed to confirm whether any marijuana plants were being grown at the property in question and some of the other information included in the tip as noted in paragraph [9] above.

[20] However, Detective Constable Onslow did obtain details of Mr. Gorman’s criminal record, which was extensive. It included a conviction registered in 2001 for production of marijuana at 2522 Catherine St. Moreover, the tipster provided information that Mr. Gorman “sells and uses what he grows”. While this information does not mean that because Mr. Gorman grew marijuana at his residence in 2001, he was also growing it at his residence in 2010, I believe it was a factor that Detective Constable Onslow was entitled to consider in deciding whether he had reasonable grounds to obtain the search warrant.

[21] After considering “the totality of the circumstances”, I conclude that the tip was sufficiently reliable to form part of the probable grounds asserted in the ITO and that Detective Constable Onslow’s investigation provided sufficient corroboration to supply him with probable grounds to obtain the search warrant.

[22] Mr. Behr also submits that there was no evidence that any criminal activity was occurring at Mr. Gorman’s residence, apart from the information from the tipster, and that Detective Constable Onslow’s investigation did not reveal any such activity. Therefore, the officer lacked probable grounds.

[23] In this regard, Mr. Moffat referred to the decision in R. v. Goodine [4] and particularly to the following paragraphs:

[2] Once unpacked the case on appeal boils down to the following narrow question, one of first impression in this Court: must the allegation of criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before the police can lawfully act upon that allegation and proceed to arrest its target? In my view, an affirmative answer is not ordained, as a matter of law. There are cases where a trial judge could reasonably conclude that, on the totality of the circumstances, the arresting officers had the requisite grounds to act as they did even though the “criminal” aspect of the tip had not been corroborated in the manner suggested above. Such corroboration is certainly not required by law in cases where, like the present one, there is no suggestion of any improper motive on the tipster’s part and the corroborated “neutral” data are such that a reasonable and dispassionate observer would conclude the tipster is both closely acquainted with the target and, to some extent, privy to the criminal activity being reported. The case against a finding of unlawfulness is the more compelling where, as here, that observer would be at a loss to point to any justification – other than farfetched speculative possibilities - for the conclusion that the tipster’s allegation of criminal conduct is unreliable.

[19] Mr. Goodine’s case on appeal, as defined at the hearing, rests upon the proposition that in all cases where a tip from an untested anonymous source is shown to be the sole basis upon which a warrantless arrest is effected and that tip is corroborated only insofar as “innocent” (what I prefer to label “neutral”) facts are concerned, a court must conclude, as a matter of law, that the arresting officers did not act upon reasonable and probable grounds. I respectfully disagree with that proposition.

[20] As I note in the introduction to these reasons, lack of corroboration of the “criminal” aspect of a tip by an untested anonymous source does not preclude a finding that an arrest based on that tip was lawful, at least where the following circumstances are in play: (1) there is no evidence that an improper motive underlies the tipster’s report; (2) the corroborated “neutral” data would lead a reasonable and dispassionate observer to infer that the tipster is both closely acquainted with the target and privy to the criminal activity being reported; and (3) that observer would be at a loss to point to any fact-based, as opposed to speculative, justification for the conclusion that the allegation of criminal conduct is unreliable. In my view, the issue for trial judges is always whether, having regard to the totality of the circumstances, sufficient grounds existed to lawfully carry out the arrest. In other words, there is no hard and fast rule; what is required is a case-specific determination that reflects an assessment of the totality of the circumstances apparent to the arresting officers at the time they took action.

[21] It is settled law that, for a warrantless arrest to be lawful, it must be based upon reasonable and probable grounds: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 (QL). The standard is “credibly based probability” (Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6 (QL)), not proof beyond a reasonable doubt or even a prima facie case of guilt (R. v. Storrey, at pp. 250-51).

[24] Goodine also involved a Crimestoppers’ tip. It was that the accused was travelling to Montreal on a regular basis and returning with contraband tobacco products. On the basis of the tip and a police investigation, the accused was arrested. The issue was whether the police had “reasonable and probable grounds” to do so. The court decided that they did and dismissed the appeal. I adopt and apply the principles stated above to the case before me.

[25] It is not necessary for the police to confirm every aspect of a tip. In my opinion, there was sufficient information gained from the tipster and Detective Constable Onslow’s investigation to meet the standard of “credibly based probability” that Mr. Gorman was growing marijuana on his property.

[26] Mr. Behr objects that the search warrant authorized the police to enter the residence when there was no evidence that marijuana was being grown inside the residence at the time Detective Constable Onslow swore the ITO. In fact, the tipster’s information was that the marijuana was being grown outside. However, the tipster also stated that Mr. Gorman “sells and uses what he grows”. Therefore, in my opinion it was proper that a warrant issue to search the home for drug paraphernalia, such as scales, drug lists, and sales records, notwithstanding the heightened expectation of privacy in a residence.

[27] Mr. Behr also submits there was no evidence that marijuana was being grown on the property on September 9th when the ITO was sworn. In this regard, I note that a date was provided in the ITO but was redacted. The tip was received in September, 2010 and the ITO was sworn September 9th. The tip was that “a Kevin Gorman is growing marijuana outdoors at his residence at 2522 Catherine St.” Paragraph 15 stated, “Tipster has seen the plants as recently as [date redacted] 2010.”Mr. Moffat advises that the date was redacted to protect the identity of the tipster. Presumably, this would not have been necessary unless the tipster was known to Mr. Gorman.

[28] In my opinion, a reasonable inference to be drawn was that the tipster had seen the marijuana plants sometime in September, 2010, at the most 9 days before the warrant was issued. He also indicated that they were about five feet high. In paragraph 26 of the ITO, Detective Constable Onslow states:

I know that outdoor marijuana grows will take the plant approximately 4 months from the immature plant stage to the budding stage and that the plants are usually planted in late May with the intended harvest time being in mid to late September. I know from my past experience that the most sought after part of the marijuana plant is the marijuana "bud" which is produced in the final stages of the growth cycle.

[29] Accordingly, in my opinion, there was "a credibly based probability" that marijuana was growing on Mr. Gorman's property at the time Detective Constable Onslow swore the ITO.

[30] Mr. Behr complains that much of the information on which Detective Constable Onslow relied was available to any member of the public, revealed no indication of criminal activity, and therefore, did not enhance the tipster's credibility. However, I must look at “the totality of the circumstances” and decide whether the standard of “credibly based probability” was met in this case. I conclude that it was and that Detective Constable Onslow had probable grounds to believe the accused was growing marijuana on his property when he swore the ITO.

[31] Accordingly, I rule that the search and seizure were reasonable and lawful and that the evidence thereby obtained is admissible.

SECTION 24(2) OF THE CHARTER:

[32] If I am wrong in coming to the conclusion that the search warrant was issued properly and that there was no breach of the applicants’ s. 8 rights, I go on to consider whether the evidence should be excluded pursuant to s. 24 (2) of the Charter and the three prong test mandated by R. v. Grant. [5]

[33] With respect to the seriousness of the Charter breach, Mr. Behr submits that the expectation of privacy in a dwelling is very high and, therefore, the breach of the applicants’ s. 8 rights is a very serious one. I agree that the unlawful search of a residence constitutes a serious breach of s. 8 rights and that a warrantless search is presumptively unreasonable.

[34] However, in regard to this issue and whether the search was reasonable, I find the following:

1. Detective Constable Onslow did not act on mere suspicion. He obtained very detailed and compelling information from an admittedly anonymous source, which he made reasonable efforts to corroborate.

2. He did not act without seeking judicial authorization to conduct a search.

3. The search was conducted in a reasonable manner.

4. In his investigation and in applying for the search warrant, Detective Constable Onslow acted in good faith. There is no allegation that he deliberately attempted to mislead the justice of the peace or that he failed to reveal relevant information.

5. As noted in paragraph [10] 3. above, he was not entirely accurate in stating that he had verified the information provided by the tipster. However, I view this as sloppy drafting rather than as a deliberate effort to mislead the justice of the peace. He set out in the ITO the information he received from the tip and the extent of his investigation so that the justice of the peace could decide whether the totality of the circumstances revealed sufficient credible and reliable evidence to permit him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

6. It is true that the search warrant allowed Detective Constable Onslow to search inside the home where the applicants’ expectation of privacy was highest. The information he had was that:

a. The marijuana plants were being grown outside the residence.

b. Mr. Gorman had been convicted in 2001 of producing marijuana comprising 86 plants at the same address.

c. Mr. Gorman was not only using but was also selling part of what he grew.

d. In his experience, the number of plants described by the tipster was inconsistent with personal use.

7. Therefore, it would be reasonable for Detective Constable Onslow to believe, based on his experience, that if Mr. Gorman were selling marijuana he would maintain records and drug paraphernalia incidental to the growing and selling of it. Accordingly, it was reasonable for Detective Constable Onslow to apply for a warrant to search for and seize “Marijuana, growth calendars, debt lists, scales, packaging” in “The dwelling house, the garage and/or outbuildings and all vehicles located at 2522 Catherine Street in the Municipality of Thames Centre in the County of Middlesex”.

[35] With respect to the impact of the breach of the Charter-protected interests of the applicants, the entry into their home where they had a high expectation of privacy would be great. The impact arising from the seizure of the plants growing outside their home and drying in the shed would be relatively minor with respect to state intrusion upon their expectation of privacy.

[36] With respect to society's interest in the adjudication of the case on its merits, I find the following:

1. The marijuana plants that were seized constitute non-conscriptive, real evidence that is highly probative and that existed apart from the Charter breach.

2. The admission of this evidence is necessary for the Crown to prove the offence.

3. Mr. Gorman had been convicted of producing marijuana at the same address some years earlier. Society has an interest in seeing that unlawful activity of this kind is discovered, that the perpetrator is brought to trial, and, if found guilty, punished. This is especially true if Mr. Gorman is found to be a repeat offender.

4. In my opinion, the admission of the evidence would not render the trial unfair.

[37] There is a societal interest in ensuring that those who engage in serious criminal activity are brought to trial and dealt with according to law. Given the nature of the offence, the reliability of the evidence, and its importance to the Crown's case, I find after considering all the circumstances reviewed above that the truth seeking function of a criminal trial would be served better by the admission of the evidence and that its admission would not undermine confidence in the rule of law.

[38] In conclusion, I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would not bring the administration of justice into disrepute. [6]

ORDER:

[39] Therefore, I rule the evidence obtained as a result of the execution of the search warrant admissible and dismiss the application.

“ Justice D. R. McDermid”

Mr. Justice D. R. McDermid

Released: August 8, 2012.

R. v. Gorman and Gorman, 2012 ONSC 4605

COURT FILE NO.: 11007/10

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KEVIN GORMAN and WENDY GORMAN REASONS FOR ORDER Mr. Justice D. R. McDermid

Released: August 8, 2012

[1] 2010 SCC 8, [2010] S.C.J. No. 8

[2] 1996 450 (ON CA), [1996] O.J. No. 2175 (O.C.A.)

[3] 1990 52 (SCC), [1990] 2 S.C.R. 1421

[4] 2006 NBCA 109

[5] 2009 SCC 32, [2009] 2 SCR 353

[6] R. v. Grant, above at para. 68