ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50000-774
DATE: 20121205

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

FRANK OPOKU-MENSAH
Applicant

Tanya Kranjc, for the Respondent/Crown
Richard Posner, for the Applicant

HEARD: July 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 2012, September 5, 2012, October 25, 2012 and November 29, 2012

KELLY J.

Ruling # 3:

Have the Applicant’s s. 8 Charter rights been violated?

[ 1 ] On March 14, 2011 the Applicant, Mr. Frank Opoku-Mensah, was charged with 16 offences relating to two firearms and ammunition. The Applicant seeks an order that his s. 8 right to be secure against unreasonable search and seizure has been violated for a number of reasons. He will then seek an order to exclude the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

[ 2 ] There were two warrants issued in this matter. One was for an apartment located in Toronto and the other was for a vehicle. Nothing of evidentiary value was located in the apartment. The firearms and ammunition were found in the vehicle.

[ 3 ] For reasons set out in my ruling dated July 17, 2012, I found that the search executed on the vehicle was warrantless. The warrant authorized a search of a black Acura and I found that the warrant was executed on a green Honda Accord. As a result, I made the finding that the Applicant’s section 8 Charter rights were violated.

[ 4 ] Counsel for the Applicant now submits that the officer who drafted the Information to Obtain (the “ITO”) falsely misled the issuing Justice by including information that was untrue. Further, he submits that the information provided by the confidential informant (“CI”) was not compelling, credible nor corroborated and as such, the Applicant’s s. 8 rights were violated.

[ 5 ] While I have not made a finding that the affiant deliberately mislead the Justice of the Peace who issued the warrant, I do find that some of the information contained in the ITO is misleading and should be excised. Further, I find that the excised ITO did not provide reasonable and probable grounds to believe a search of the vehicle would afford evidence of an offence because the CI was neither credible nor was the information he provided corroborated.

[ 6 ] Accordingly, for the reasons set out below, I have concluded that the Applicant’s s. 8 rights have, again, been infringed.

Issue #1: Was the ITO misleading?

a. The Background to this Application

[ 7 ] On March 14, 2011, Detective Constable MacNeil obtained two search warrants. One was for “44 Willowridge Road, Apartment #206 in the City of Toronto” and the other was for “a Black Acura Motor Vehicle Ontario License plate of BKFA 339 at 44 Willowridge Road in the City of Toronto”. The warrants authorized the police to search for the following: a hand gun, ammunition and identification.

[ 8 ] The ITO provided to the issuing justice relied heavily on information provided to D.C. MacNeil by a CI. In order to maintain informer privilege, Crown Counsel disclosed a copy of the ITO with certain portions of the information redacted in order to protect the identity of the CI. [1] Counsel for the Applicant did not challenge the legitimacy of the confidential informant claim made by Crown Counsel. Crown Counsel provided draft summaries of the unredacted portions. [2] After review, those summaries were provided to Counsel.

[ 9 ] Counsel for the Applicant applied successfully to cross-examine D.C. MacNeil on particular issues. Certain other officers also testified.

[ 10 ] Counsel submits that the ITO is misleading for the following reasons:

a. Firstly, D.C. MacNeil deliberately misled the issuing Justice because he submits the CI never mentioned that the Applicant drove an Acura and such information was attributed to the CI in the ITO.

b. Secondly, a conversation with D.C. Wauchope which confirmed the existence of the Acura in the parking garage did not occur as represented by D.C. MacNeil in the ITO.

c. Thirdly, a certain portion contained in the conclusion of the ITO should be excised because there is no compelling information that the firearms would be found in an Acura.

[ 11 ] I am not satisfied that D.C. MacNeil falsely represented that the CI told him that the Applicant was driving an older model Acura. However, I am satisfied, on a balance of probabilities that D.C. MacNeil did make a misrepresentation to the issuing Justice with respect to a conversation he had with D.C. Wauchope and accordingly, the conclusion is inaccurate. To understand my reasons, I will provide the relevant factual context for them.

b. The Facts

(i) The Briefing

[ 12 ] D.C. MacNeil testified that he had spoken to a CI before meeting with six members of the Gun and Gang Task Force. He met with the officers on March 14, 2011. He says the CI told him that the Applicant was driving an “older model Honda or Acura with an Ontario license plate of BKFA 339”.

[ 13 ] D.C. MacNeil then met with the six officers. He testified that he told the officers that the Applicant was driving an “ older model dark Honda or Acura ” with a license plate of BKFA 339 (the “vehicle of interest”). He denies that he described the vehicle of interest as a “Honda Accord”.

[ 14 ] The officers testified that D.C. MacNeil described the vehicle of interest at the briefing as follows:

Det. Long:
An older model “Honda Accord”, dark in colour.

D.C. Scott Ross:
A dark “Honda” with license plate BKFA 339.

D.C. Antonio Frederick:
An older model “Honda Accord”, dark colour.

D.C. Liam Wauchope:
A dark “Honda” with license plate BKFA 339.

D.C. Jason Reynolds:
A dark coloured “Honda Accord”.

D.C. Rasih Palah:
An older dark coloured “Honda Accord”.

[ 15 ] No officer testified that D.C. MacNeil referred to an Acura at this briefing although D.C. Frederick said it was possible. D.C. Frederick testified that he depends upon his notes for details of this nature. His notes describe the vehicle of interest as a Honda Accord.

(ii) Police Checks Following the Briefing

[ 16 ] Following the briefing, D.C. MacNeil returned to the police station and began drafting the ITO. He conducted some police checks, one of which provided as follows:

The most recent return for OPOKU-MENSAH is dated December 21 st . 2010, FIR # 2010276318. The nature of the contact is listed as vehicle related. OPOKU-MENSAH was investigated in the driveway of 22 Willowridge Road in the City of Toronto. At the time of the investigation OPOKU-MENSAH was driving a black Acura 4 door car with an Ontario Licence plate of BKFA 339. OPOKU-MENSAH is described as being male black, with brown eyes and black afro. OPOKU-MENSAH is further described as being 6’2” 249 lbs. and that he stutters. OPOKU-MENSAH provided the officers with a home address of 44 Willowridge Apartment 206.

[Emphasis added]

[ 17 ] A police check of license plate BKFA 339 listed the registered owner of the plate as “Juliana Mensah” with an address of 44 Willowridge Road, Apartment 206. The current status of the plate was “unattached”.

[ 18 ] What the police checks did not disclose prior to the ITO being submitted is that a 2000 Black Acura belonging to the Applicant’s mother was sold as of January 17, 2011 – two months before the search warrants were sought and one month after the vehicle was stopped as described in paragraph 16 above. As of March 14, 2011, the Applicant was the owner of a 1998 Honda Accord. This information was provided to the Court during the voir dire by way of government generated documents and witnesses produced by the Applicant.

(iii) Communication with Officers Conducting Surveillance

[ 19 ] While preparing the ITO, D.C. MacNeil testified that he received information from D.C. Wauchope. D.C. Wauchope told him that he had located a four-door Acura with license plate BKFA 339 in spot #124. D.C. MacNeil describes that call in the ITO as follows:

On Monday March 14 th at approximately 4:30 p.m. Detective Constable Liam WAUCHOPE #8056 of the Toronto Police Gun and Gang Task Force attended the area of 44 Willowridge Road. Once on scene WAUCHOPE attended the underground parking lot of 44 Willowridge in order to locate the 2000 Black 4 door Acura with the license plate of BKFA 339. WAUCHOPE located the vehicle parked in spot #124. The vehicle was unattended at the time. [Emphasis added]

[ 20 ] D.C. Wauchope testified that while he did locate a vehicle in spot #124 at 44 Willowridge Drive, he never described it as a “Black 4 door Acura”. He did not do so because he was looking for a Honda Accord and that is what he found in spot #124. He simply advised the members of the team that he located “the vehicle”.

c. Analysis Re: Issue #1

[ 21 ] In these circumstances, the customary test for reviewing a search warrant is whether the record as excised and amplified, could have provided a basis for the authorizing judge to issue the warrant. [3] The reviewing judge is not to substitute his or her view for that of the authorizing judge. As set out in R. v. Garafoli [4] at para. 56 :

If, based on the record, which was before the authorizing judge, as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[ 22 ] Bearing these principles in mind, I will now deal with the analysis of the three items which Counsel submits are misleading.

Reference to the Acura as Provided by the CI

[ 23 ] I am not persuaded, on a balance of probabilities, that D.C. MacNeil deliberately misled the issuing Justice by advising that the CI had told him the Applicant was driving an older model “Acura” or “Honda”. Unfortunately, this particular issue occupied a significant amount of Court time which I will summarize here.

[ 24 ] Counsel for the Applicant was very clear that he believed D.C. MacNeil had lied to the issuing justice. He submits that the CI had never told D.C. MacNeil that the Applicant was driving an Acura. The reference to “Acura”, he says, was falsely attributed to the CI and included in the ITO because the police check identified the Applicant in an Acura in December, 2010.

[ 25 ] Counsel cross-examined D.C. MacNeil following a successful application to do so pursuant to R. v. Garafoli , supra . D.C. MacNeil maintained that the CI told him that the Applicant was driving an older model dark Honda or Acura and that information was communicated by him to the officers. He maintained that position during a rigorous cross-examination by Counsel wherein Counsel submitted that he would be contradicted by the evidence of the six officers at the briefing.

[ 26 ] Following the cross-examination of D.C. MacNeil and outside the presence of the Court, Counsel for the Applicant advised Crown Counsel that if there was a contemporaneous note with the CI regarding the information about the Acura (or not) she should look at it because, in his words: “I think your officer is a liar”. As submitted, Crown Counsel did not look at the notes at the time. No questions were asked by her in re-examination on this issue.

[ 27 ] All officers testified as summarized in paragraphs 14 and 15 above. No officer testified that they heard D.C. MacNeil mention that they were looking for an Acura before the ITO was submitted to obtain the warrants.

[ 28 ] Counsel then made their submissions. Counsel for the Applicant submitted that D.C. MacNeil was lying when he said that the CI referred to an Acura. He submitted that D.C. MacNeil committed a fraud in submitting an ITO containing information that was false and that he had committed perjury in these proceedings. This, he says, was borne out by the evidence provided by the six officers at the briefing: none of whom referred to an Acura being mentioned.

[ 29 ] After considering the submissions and in light of the serious allegation being made by Counsel for the Applicant that D.C. MacNeil was lying, I suggested to Crown Counsel that the source notes referring to conversations between D.C. MacNeil and the CI should be reviewed. Although I was reluctant to do so, mindful that as the trial judge I should not improperly enter the fray, I was of the view that this was an appropriate case to make the inquiries that I did of the Crown.

[ 30 ] It was my view that Crown Counsel had an obligation to the administration of justice to take all reasonable steps to find out if contemporaneous notes existed regarding the description of the vehicle (or lack of it) and share the results of such an inquiry with Counsel for the Applicant. (See Doherty J.A.’s comments in R. v. Ahluwalia [5] cited with approval by the Supreme Court of Canada in R. v. McNeil . [6] ) Such a reference was included in the redacted ITO so that if a note existed, it could be disclosed as it would not jeopardize the identity of the CI.

[ 31 ] It was only after this issue was raised by the Court, that Crown Counsel did review the notes. Thereafter a note was produced. It has been represented to the Court as a contemporaneous note taken before the ITO was submitted. It says that the CI told D.C. MacNeil that the Applicant was “driving dark older model Acura or Honda. Plates BKFA 339”.

[ 32 ] Following the disclosure of the note, Counsel for the Applicant submitted that the notebook containing the reference should be put before the Court and sealed pending an application to have the entirety of the notebook released. He sought to have an expert conduct a “hydro-electro static analysis” in Great Britain. I declined to do so because it is a notebook that is exclusively comprised of information provided by the CI and such information is not to be disseminated. [7]

[ 33 ] Counsel then sought to have the particular page subject to an ink analysis to see if the notes had been written within six months and therefore not before the ITO was drafted. The Crown initially opposed such an application. Counsel for the Toronto Police Service then appeared and consented to the application. The results of the handwriting analysis were produced.

[ 34 ] Thereafter, an application was made by Crown Counsel to recall D.C. MacNeil on the issue of the making of the note. I exercised my discretion to allow the application because I found that it was in the interests of justice to do so. [8]

[ 35 ] Counsel for the Applicant cross-examined D.C. MacNeil on the making of the note. Despite opposition from Crown Counsel, I allowed Counsel to cross-examine D.C. MacNeil on his compliance (or non-compliance) with the Toronto Police Service Policy regarding CI’s. In my view, such questions and more particularly, the answers, could have an impact on D.C. MacNeil’s credibility which was squarely at issue, due to the submissions of Counsel for the Applicant that he was a perjurer. [9]

[ 36 ] Following this evidence, Crown Counsel sought an adjournment of the matter so that she could call Mr. Luc Brazeau of the Canada Border Services Agency to give expert testimony regarding “chemistry and in particular, but not limited to, ink dating and ink analysis”. It was her intention to lead this evidence to show that the note written by D.C. MacNeil was not written in and around July 17, 2012 when this issue arose as alleged by Counsel for the Applicant. I granted such an adjournment and Mr. Brazeau appeared on November 29, 2012.

[ 37 ] The Applicant contested the admissibility of the evidence of Mr. Brazeau submitting that it did not meet the test for expert testimony set out in R. v. J. (J.L) [10] . The Applicant further submitted that even if Mr. Brazeau was qualified to give an opinion with respect to ink dating and ink analysis, the opinion of Mr. Brazeau was of no probative value because it was inconclusive. Mr. Brazeau admitted that he could not say when the note was written. He could not exclude that it was written in July, 2012 as submitted by the Applicant or before the ITO was drafted as submitted by the Crown. I agreed with the submissions of the Applicant and I excluded the evidence. [11] Counsel then proceeded to complete their submissions on the s. 8 violation.

[ 38 ] After having heard the evidence of D.C. MacNeil and having reviewed his notes with the consent of both parties, I have concluded that D.C. MacNeil was told that the Applicant could be driving an Acura. I observed D.C. MacNeil being questioned. He maintained the position that the CI told him that the Applicant could be driving an Acura. He did so in the face of being told that his evidence would be contradicted by each and every officer who attended the 3:00 p.m. briefing. He produced a note that appears to be contemporaneous: it describes an Acura. In light of this, I decline to find that D.C. MacNeil deliberately mislead the Justice of the Peace when he described the vehicle of interest as either a “Honda” or an “Acura”. As such, this portion of the ITO will not be excised.

[ 39 ] Before leaving this issue, it is necessary to address a larger issue that arises from what happened during the course of this application. The contemporaneous notes of D.C. MacNeil’s dealings with the CI were not disclosed at all prior to the Court’s inquiry. It is understandable that much of the content of those notes could not be disclosed because to do so might identify the CI and the notes are therefore privileged. However, not everything the CI told the D.C. MacNeil was, in fact, privileged.

[ 40 ] The information contained in the note mirrors what was said by D.C. MacNeil in the ITO. As the information was not redacted in the ITO, it clearly is not information that would tend to identify the CI. If it was, it would have been redacted in the ITO in addition to not being disclosed. The note should have been disclosed pursuant to the Crown’s disclosure obligation.

[ 41 ] In making these comments I do not mean to be overly critical of Crown Counsel. The defence is also obligated to pursue disclosure when disclosure is not forthcoming. In light of the position being taken by Counsel for the Applicant on the Charter application, he was entitled to seek disclosure of the CI debriefing notes and to have any claims of privilege reviewed by the Court. Had he done so, it might have been obvious at the time of D.C. MacNeil’s testimony in July, 2012 that he had a contemporaneous note confirming the content of the ITO (at least in that regard), which would have also saved considerable expense and scarce judicial resources.

The Conversation with D.C. Wauchope

[ 42 ] The paragraph dealing with the conversation with D.C. Wauchope leads the reader to believe that D.C. Wauchope went into the parking lot at 44 Willowridge Road to locate a “2000 Black 4 door Acura” with the license plate of BKFA 339 and that he did locate such a vehicle in parking spot #124. D.C. MacNeil testified that this is what D.C. Wauchope told him during surveillance because he made a note of it. He is “positive” that D.C. Wauchope told him he located an Acura. However, the content of the call and this paragraph is completely contradicted by the evidence of D.C. Wauchope which I accept.

[ 43 ] Firstly, D.C. Wauchope testified that he was looking for a dark Honda vehicle pursuant to the briefing at 3:00 p.m. and not an Acura as suggested in the ITO. He did go into the parking lot and he did locate a vehicle with license plate BKFA 339, but it was not a “Black 4 door Acura”. It was a dark Honda with four doors.

[ 44 ] Further, D.C. Wauchope testified that he was not 100% sure if he spoke to D.C. MacNeil directly or whether he used the radio to advise the team that he had located the “vehicle” with license plate BKFA 339. He does not recall describing the vehicle in any detail ( i.e. providing the make and model or colour.)

[ 45 ] D.C. Wauchope’s evidence is consistent with that of D.C. Ross who was the central note taker that night. He testified that D.C. Wauchope informed him that he located the vehicle with the license plate but gave no description of the make or model. D.C. Frederick testified that he heard that “the vehicle is in the underground”. He presumed that the vehicle was a “Honda” because that is the vehicle they were looking for.

[ 46 ] Based on all of the above, I accept that D.C. MacNeil misled the authorizing Justice about the conversation with D.C. Wauchope although I do not find it deliberate or fraudulent. I find that such a misstatement was reckless and/or negligent. Accordingly, that portion dealing with the reference to an Acura alleged to have been located by D.C. Wauchope will be excised.

The Conclusion in the ITO

[ 47 ] On page 6 of the ITO, D.C. MacNeil included the following paragraph:

I believe that there is compelling and corroborating evidence that a handgun will be located either within the premise located at 44 Willowridge Road, Apartment 206 or in the black Acura with an Ontario Licence Plate of BKFA 339 located in the underground parking lot at 44 Willowridge Road.

[ 48 ] In light of the amplification evidence, I find that this paragraph is misleading although not deliberately so. Had D.C. MacNeil done the computer checks regarding the Acura and correctly referenced the conversation with D.C. Wauchope, he would have known that the Acura was sold approximately two months before the search warrant was granted and that an Acura was not found in the underground lot. As such, it would be improper for him to suggest that there was compelling and corroborating evidence that the firearm would be found in the Acura. Accordingly, a portion of this paragraph will be excised.

d. Excision of the ITO

[ 49 ] As a result of my findings, the following portions of the ITO that are underlined below will be excised from the ITO. Those portions in italics are to be included as a result of amplification:

a. Page 5 : “On Monday March 14 th at approximately 4:30 p.m. Detective Constable Liam WAUCHOPE #8056 of the Toronto Police Gun and Gang Task Force attended the area of 44 Willowridge Road. Once on scene WAUCHOPE attended the underground parking lot of 44 Willowridge in order to locate the 2000 Black 4 door Acura a Honda with the license plate of BKFA 339. WAUCHOPE located the vehicle parked in spot #124. The vehicle was unattended at the time.”

b. Page 6 : “I believe that there is compelling and corroborating evidence that a handgun will be located either within the premise located at 44 Willowridge Road Apartment 206 or in the black Acura Honda with an Ontario Licence Plate of BKFA 339 located in the underground parking lot at 44 Willowridge Road.”

[ 50 ] It remains to be seen whether or not, in light of that excision, there remain reasonable and probable grounds to issue the warrant.

Issue #2: Consideration of the Debot Criteria [12]

[ 51 ] Where the police, as in this case, rely on information provided by a CI as the basis for their reasonable and probable grounds to justify a search, there are a number of considerations to bear in mind when evaluating whether the information provides the necessary “reasonable grounds to believe” justifying the granting of the warrants. In these circumstances, there must be a consideration of three issues:

a. Was the information predicting the commission of a criminal offence compelling?

b. Was that source credible?

c. Was the information corroborated by police investigation prior to making the decision to conduct the search?

[ 52 ] The totality of the circumstances must meet the standard of reasonableness. Weaknesses in one of the areas may, to some extent, be compensated by strengths in another. [13] Counsel for the Applicant submits that none of the three requirements was satisfied.

[ 53 ] Crown Counsel does not concede that the redacted ITO does not meet the Debot criteria. However, she has requested that the Court invoke the use of Step 6 as outlined in R. v. Garafoli , supra , at para. 79 . This permits the Court to consider certain unredacted portions of the ITO to assess whether the information before the issuing justice as to the CI’s means of knowledge, was credible and compelling. Counsel for the Applicant raised no objection to this review.

[ 54 ] Given the Applicant has received a judicial summary of the vetted portions of the ITO, I am satisfied that it is appropriate to resort to Step 6 of Garafoli in assessing the issue of reasonable and probable grounds and determining if the Debot criteria have been met as I am satisfied that the Applicant can make full answer and defence and pursue his claim notwithstanding that the Court will be reviewing redacted portions of the ITO

(a) Was the tip compelling?

[ 55 ] The first factor in this inquiry considers whether the information provided by the CI was compelling. Bald and conclusory statements, rumour and gossip will not suffice. It is not necessary for the police to confirm each and every detail of the tip provided by the CI so long as the sequence of events, actually observed, removes the possibility of innocent coincidence.

[ 56 ] The nature of the information provided by the CI and referred to in the redacted ITO and summaries may be summarized as follows:

a. Timing: In the redacted ITO, “the date(s) is/are within 6 months of the date of the Information to Obtain”. However, the unredacted portion gives specific information about timing.

b. Source of Information regarding knowing the Applicant: The unredacted portions of the ITO contain the source of knowledge for the CI’s information about the Applicant.

c. Information regarding the Firearm: The unredacted portions of the ITO contain the source of knowledge regarding the possession of the firearm(s), including the time frame for possession which is within six months of the date of the ITO. It also includes a detailed description of the firearm(s); the time frame indicating when the firearm(s) was observed by the CI which includes a reference to day, month and year, and the location(s) where the CI observed the firearm(s) and/or observed the Applicant in possession of the firearm(s).

d. Description: That the Applicant is known to him/her as “Stutters” and that he is a male black, large build over 6’ tall with short black hair.

e. Address: The Applicant lives at 44 Willowridge Road, but the specific information concerning the residence of the Applicant is excluded.

f. Criminality: That he/she knows Stutters to sell crack cocaine in the Willowridge complex area.

g. Vehicle: That Stutters was driving an older model Acura or Honda with an Ontario license plate of BKFA 339.

[ 57 ] Based upon a review of the information provided by the CI, it appears that he/she provided details concerning a specific address and/or vehicle where the firearm(s) could be located. He/she gave a description of the firearm(s) that was detailed. It is my view that the timing of the information with respect to the firearm(s) being present in the home and/or vehicle is important as to whether the information was compelling or not. Further, there is information provided as to when and how the CI came into possession of information about the firearm(s) that appears to have been obtained first hand.

[ 58 ] In conclusion, I am satisfied that there is information that was timely and factual supporting the basis of the information provided by the CI. As such, I find that the information provided by him/her was of a compelling quality.

(b) Was the source credible?

[ 59 ] In examining whether the CI was credible, the Court will examine whether the CI had been used in the past and provided reliable information, whether the CI had some motivation to provide the information due to outstanding charges and whether the CI had a criminal record for dishonesty.

[ 60 ] An admission filed in these proceedings provides that the ITO did not include the following information:

a. whether or not the CI has provided information to the police in the past;

b. whether or not the CI is reliable and/or unreliable based on past performance; and

c. whether or not the CI was carded.

[ 61 ] The summary provided to the Applicant states that the unredacted ITO “includes details regarding reprisal(s) if the confidential informant’s identity were discovered and the confidential informant’s motivation for providing information is to receive consideration/compensation. The type(s) of consideration/compensation sought is/are noted”.

[ 62 ] Further, the redacted ITO advises that the CI “does not have any convictions for perjury, obstruct police or obstruct justice” and it refers to “appendix D”. Appendix D was redacted from the ITO but was described in the summaries as follows: “Appendix D is information in relation to the confidential informant concerning the existence or non-existence of a criminal record and/or the existence or non-existence of contact with the police”.

[ 63 ] On the basis of the facts regarding the antecedents of the CI, it appears that the CI is untested. In such cases, the issues become whether the quality of the information provided by the informant and the corroborative evidence sufficiently compensate for the inability to assess the credibility and reliability of the source.

[ 64 ] As stated above, I find that the information was compelling but as stated below, it was not sufficiently corroborated.

(c) Was the information corroborated before the search?

[ 65 ] The corroborative information should confirm both the credibility of the informant and the criminal aspects of the tip in some material respect. It is trite to say that the results of any search cannot ex post facto provide evidence of the reliability of the information provided by the CI.

[ 66 ] The Applicant submits that there was no corroboration of the information provided by the CI of the criminality of the Applicant. The CI told the police that the Applicant is “known” to sell cocaine in the Willowridge Road complex area. However, there is no evidence before this Court that the police confirmed that that was the case.

[ 67 ] The Crown submits that it was not possible to confirm that the Applicant was a drug dealer: a person who sold crack cocaine in the Willowridge Road complex area. She submits that it would have been very difficult for the police to conduct surveillance in the area. Officers Ross and Frederick testified about the difficulties of conducting surveillance in this area. Their evidence on this point may be summarized as follows:

a. The complex: The complex is a set of three high rise buildings in a star shape. D.C. Frederick testified that you cannot remain in your vehicle for too long conducting surveillance as people will assume that you are a police officer.

b. The apartment: The Applicant’s apartment was on the second floor in a long hallway. It would have been impossible to conduct surveillance outside of the apartment without being noticed.

c. The basketball courts: The area where the basketball courts are located is wide open so that it would have been impossible to make observations without being noticed. Det. Ross testified: “it would be very easy to pick up on surveillance in that area because it is wide open”.

d. The parking lot: The parking lot is below the building. It is dimly lit and again, it would have been challenging to conduct surveillance in that area.

[ 68 ] Despite such protestations about the difficulty in conducting surveillance, six police officers did just that in this area for over five hours prior to the execution of the search warrant as follows:

a. The complex: The officers were able to make observations of the outer area of the building because at about 5:49 p.m. D.C. Frederick observed the Applicant exit the building, attend at a “tuck shop” in an adjacent building and return to his building. That officer was able to observe the Applicant at a close enough range to identify what he was wearing.

D.C. Long was able to observe the Applicant leave and re-enter the building.

b. The apartment: Despite the apartment being on the second floor, an officer was able to do a “walk by” and determine that there was activity in the apartment.

c. The basketball courts: Despite the basketball court being in an open space, officers were able to observe the Applicant out in that area with a number of friends. There is no suggestion that the officers were exposed during this surveillance.

d. The parking lot: Despite the parking lot being dimly lit, two officers were able to conduct surveillance in that area for hours. Initially, and within an hour of commencing their surveillance, D.C. Wauchope was able to identify the vehicle they were looking for, identify the spot it was in and provide this information to other officers via cell phone or radio. The vehicle was watched by him for hours.

Thereafter, and at 7:20 p.m. D.C. Palah was able to observe that the Applicant attended in the parking lot, went to his car, unlocked it, got into the driver’s side and then at 7:24 p.m. he got out and returned to the complex. Again, there is no suggestion that the officers were exposed during this time.

At 8:35 p.m. D.C. Reynolds was able to enter the parking lot to conduct surveillance.

[ 69 ] I accept that the specific apartment in the complex was in a location such that the officers could not maintain a watch outside it without being detected. I also accept that the police could not canvass neighbours or even building security because they would and could not know whether there was any association with the Applicant or those who would or might be inclined to alert the Applicant of police interest.

[ 70 ] In my view, however, it would have been possible for the police to conduct surveillance in the 44 Willowridge area in order to confirm that the Applicant was, in fact, a drug dealer as the CI suggested. In any event, even if it was difficult to corroborate, the fact remains that there is no corroboration.

[ 71 ] What the officers did confirm or corroborate was the information about the Honda vehicle with a license plate of BKFA 339 and the address of the Applicant. They also confirmed that there were voices inside a particular apartment on the second floor and the description of the Applicant provided by the CI. I agree with Counsel for the Applicant that this information corroborated is benign and that the comments of Labrosse J.A. in R. v. Zammit [14] are applicable here:

Was the information corroborated by police investigation? Surveillance yielded nothing out of the ordinary and it provided no link to the criminal activity alleged to be taking place. Again, the surveillance confirmed only what would probably have been known by anyone familiar with the appellant.

[ 72 ] Based on the above, the information provided as corroboration is innocent information that, by itself, would not justify the issuance of the warrant. As such, I find that the corroboration provided did little to support the credibility of the CI.

[ 73 ] In considering the three Debot criteria, I find that the information provided by the CI was compelling as it provided significant detail, but there was no evidence to support the fact that the CI was credible or that his information was corroborated.

[ 74 ] Notwithstanding the compelling nature of the information, it was not so compelling absent corroboration of the criminality that it warranted the issuance of the search warrant. As such, I am satisfied that in the totality of the circumstances, there is insufficient information in the ITO before the issuing Justice to provide reasonable grounds for the issuance of the search warrant.

Conclusion

[ 75 ] For the abovementioned reasons, I find there has been a breach of the Applicant’s s. 8 rights in these circumstances. [15]

Kelly J.

Released: December 5, 2012