R. v. Durette, 2013 ONSC 4850

CITATION: R. v. Durette, 2013 ONSC 4850

COURT FILE NO.: 13-012

DATE: 20130826

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

RICHARD DURETTE Applicant

COUNSEL: R. Jones, for the Respondent Crown L. Saunders, for the Applicant

HEARD: June 27, 2013

REASONS FOR DECISION ON RULING

MULLIGAN J.:

INTRODUCTION

[1] The Applicant, Richard Durette is charged with three counts on an indictment for possession of cocaine for the purposes of trafficking, possession of cocaine, and possession of property not exceeding $5,000, obtained by commission of an offence. The charges arose from the execution of a search warrant executed on August 5, 2012. He applied under the Charter to exclude evidence obtained pursuant to the search warrant on three grounds:

(i) After the police entered his residence and before he was informed to his right to counsel, he made an utterance in response to a question from the police officer;

(ii) He was arrested immediately upon the police entering his premises, prior to any materials seized, pursuant to the search warrant;

(iii) There were material deficiencies in the information to obtain (ITO) and after consideration and judicial review at this amplification hearing, the fruits of the search should be excluded as a violation of his Charter rights.

[2] On June 27, 2013, I dismissed the application with reasons to follow. The following are my reasons.

[3] This matter proceeded by way of a voir dire, as an amplification hearing. The defence sought and was granted the right to cross-examine the affiant, D.C. Addison Hunter, and the sub-affiant, D.C. Mike Steele. At the hearing, three other officers, D.C. David Earhart, D.C. Brian Anderson, and Sgt. John Slater gave evidence for the Crown, and were subject to cross-examination.

[4] On August 5, 2012, D.C. Addison Hunter obtained a search warrant from the justice of the peace based on an ITO. The search warrant sought the right to enter the residence of Richard Durette at 8278-Highway 11 Southbound, in the Township of Severn (the Bel Air Motel) on August 5, 2012, between the hours of 11:50 a.m. and 8:59 p.m. on that date. As to the execution of the search warrant, the ITO sought permission to gain access to the residence by breaching the door if locked, to prevent loss of evidence and for the safety of the police officers in attendance and the accused parties involved.

[5] The ITO contained an Appendix C, containing about nine pages of information under the following headings:

(a) Introduction

(b) Investigative Sources

(c) Confidential Source Information

(d) Background to the Investigation

(e) Grounds to Believe that Offence has been Committed

(f) Grounds to Believe the Things to be Seized will Afford Evidence of the Offence

(g) Grounds to Believe the Things Sought are Presently at the Place to be Searched

(h) Conclusion

(i) Execution of Search Warrant

(j) Sealing Order

[6] As the affidavit makes clear, the affiant, D.C. Addison Hunter, obtained information from a confidential source (CI 1). The sub-affiant, D.C. Mike Steele, obtained information from another confidential source (CI 2). Prior to the trial and as part of its disclosure obligations, the Crown opened the sealed packet and provided defence counsel with the ITO, however, information said to identify the confidential informants was blacked out. The defence acknowledged that confidential informants have a right to privacy, and this right trumps the Crown’s disclosure obligations per Stinchcombe.[^1] Previous to this ruling and for reasons given orally, I determined that the Crown had fulfilled its obligations and no further disclosure was ordered.

[7] The evidence of the police officers as set out in the redacted affidavit and in cross-examination at the voir dire, indicates that the justice of the peace was provided certain information. I will not review every item of information in the ITO, but the essence of the information is that D.C. Hunter, an officer trained in drug enforcement and warrant preparation, received certain information from his confidential informant. He spoke to the informant and learned that the Applicant was in possession of cocaine, as observed by C.I. 1 in Room #1 at the Bel Air Hotel. The source saw crack cocaine, divided for sale. The source provided information as to where the Applicant stored the cocaine and crack cocaine. The source provided information that Mr. Durette had a white mini-van, registered to him and parked outside the room. The source indicated that Mr. Durette had a record for drug trafficking. The source acknowledged being a user of crack cocaine and being familiar with the appearance of various illicit drugs and paraphernalia. Officer Hunter acknowledged that source #1 was an unproven source, but information provided to-date had been accurate and reliable.

[8] The affidavit of Officer Hunter incorporated information from the sub-affiant, Officer Steele, who had spoken to CI 2. This source also provided information to Officer Steele that the Mr. Durette was in possession of pre-packaged crack cocaine at his residence at 8278 Highway 11 South, Room #1, Severn Township (Bel Air Motel). Source #2 advised that it had also attended the residence and observed the cocaine and the pre-packaged crack cocaine. The source also indicated that the Applicant drove a white mini-van, parked out front of the room. It was noted that source #2 is a chronic drug user and addict, and familiar with illicit drugs substances and paraphernalia. The ITO indicated that source #2 has not been convicted of public mischief or deceit. Source #2 was also an unproven source, but information previously provided had been concise and accurate.

[9] The conversations that the officers had with confidential informants 1 or 2 took place on a date or dates in August of 2012, therefore on or just before the date the search warrant was issued.

[10] As a result of the information obtained, Officer Hunter conducted the number of searches on August 5, 2012 before submitting the ITO. This information was set out in his affidavit. He conducted an RMS Niche search on Richard Durette, as well as a CPIC check and an MTO search. The CPIC information provided in the ITO from these searches indicated that Mr. Durette had a criminal record, having five convictions for drug trafficking from 1991 to 2006. The MTO search indicated that Richard Durette was the owner of a 2005 white GMC mini-van. Prior to the issuance of the search warrant, Officer Hunter did a drive-by of the location, observed the white van parked at the Bel Air Motel in front of Room #1, and noted the license plate number, which enabled him to conduct the MTO search as noted. Based on this information and the searches conducted, Officer Hunter sought a search warrant on the basis that a search warrant would yield cocaine as evidence of possession of cocaine for the purposes of trafficking.

[11] The search warrant sought permission to gain access to the residence by breaching the door if it was locked. As the ITO stated at p.8, para. 3, “The door will be breached to prevent the loss of evidence and for the safety of the police officers in attendance, and the accused parties involved.”

[12] In addition to the redacted ITO, the Crown submitted redacted copies of the officers’ notes to the defence. The officers made reference to these notes in their viva voce evidence, but acknowledged that they had an independent recollection of these events.

THE EXECUTION OF THE WARRANT

[13] The warrant was issued at 11:48 a.m. on August 5, 2012. A team of five officers was assembled to assist with the execution of the warrant. After determining their assigned roles, the officers attended at the premises at about 1:23 p.m. In accordance with the search warrant as issued, they did not knock to announce their presence or seek entry. They found the screen door unlocked, tried the main door and found it was unlocked, and entered the premises. When they entered, Mr. Durette was at or near the doorway. He was compliant and co-operative as the officers announced their entry and that they had a search warrant. He was arrested and placed in a police cruiser where he was given a caution and read his rights by Sgt. Slater. There was no discussion with him at that time, but upon first entering the premises, Officer Hunter said words to the effect, where are the drugs? Mr. Durette made an utterance. Defence made an application to exclude this utterance as a breach of his rights under the Charter. The Crown conceded the point and undertook not to rely on the utterance at the trial.

[14] The police officers then conducted a search of the motel room, which was described as a small, cluttered room with an adjacent bathroom. Although there was no bed in the room, there was a couch which may have had blankets or pillows on it. Within the room itself, there was a kitchenette, some tables and shelving. As a result of the search, the officers seized a quantity of drugs within two containers. The first was a tackle box on a table immediately adjacent to the couch. The second was within a black CD case on shelving within the room. They also seized an LG laptop computer. The police also noted in plain view, a plate containing a razor blade, a black digital scale, three cell phones and a large quantity of baggies throughout the room, either open or within containers. The officers also seized Mr. Durette’s wallet which contained approximately $1,200 of Canadian currency in a mixture of denominations, as well as a small amount of American currency located within the tackle box.

[15] The search was completed within one hour. Officers Hunter and Steele returned to the detachment with the seized material and proceeded to weigh, catalogue, photograph and secure the evidence seized. Later that day, Mr. Durette was released on a Promise to Appear, and driven back to the Bel Air Motel by Officer Hunter.

[16] Officer Hunter acknowledged in testimony that in addition to the ITO, he provided the justice of the peace with any criminal records that confidential source #1 or #2 may have had.

POSITION OF THE DEFENCE

[17] It is the defence position that the search warrant should not have been issued. The search was unreasonable and it was executed in an unreasonable manner. In the result, the physical evidence should be excluded, to allow it to be admitted would bring the administration of justice into disrepute, contrary to s.24(2) of the Charter.

[18] The Crown’s position is that upon review of all of the evidence in the ITO as amplified by the hearing, there was no breach of the Charter rights of Mr. Durette. The Crown submits in the alternative that if there was a Charter breach with respect to the issuance of the search warrant, the initial arrest of Mr. Durette or the utterance he made but not relied upon, then a consideration of the factors set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] S.C.J. 32, would favour the admission of such evidence. The seriousness of the Charter breach was minimal. The impact of the breach was fleeting and technical in nature, and not intrusive, and the reliability of the real evidence obtained favours its admission.

[19] After the amplification hearing, the defence submits that there are numerous concerns which viewed collectively, should leave the court to determine whether the search warrant as issued, and the manner of its execution, was a breach of Mr. Durette’s rights, so that fruits of the search ought to be excluded. Without providing an exhaustive list, the defence suggests that the following facts should be considered:

• In seeking the search warrant, the police did not provide full, fair and frank disclosure.
  • They did not disclose Mr. Durette’s principal residence as being elsewhere in the Province of Ontario, according to the MTO records.
  • Although disclosing his record, there was a substantial gap in his criminal record between the dates of his first three offences and over twenty years later, his next two offences, which were in 2006.
  • The ITO did not identify what, if any, relationship there was between CI 1 and CI 2.
• The confidential informants were known drug users who may have had criminal records and their credibility was suspect.
• The tips from the confidential informants were not compelling, given that the confidential informants were untested sources.
• The corroboration conducted by the police was not sufficient. Mr. Durette was not observed at the residence for any length of time, nor was he followed. There was no verification of which unit he was occupying. The landlord was not contacted.

THE CROWN’S POSITION

[20] The Crown’s position is that on an application such as this, the burden to show a breach of Charter rights falls on the applicant. There is a presumption of validity of the search warrant and the reviewing judge is not entitled to substitute his or her own decision when reviewing the search warrant issued by the judicial officer.

[21] With respect to specific issues raised by the defence, the Crown submits that:

• There was no need to verify or check Mr. Durette’s principal residence as noted on the MTO. They observed a white van parked at this motel, confirmed that it was his vehicle parked at this temporary residence.
• Although the confidential informants were unproven sources, the officer indicated that they had provided accurate information.
• The officer did not rely on confidential informants alone. He conducted a CPIC search, an MTO search, and did his own drive-by of the motel to observe Mr. Durette’s van there. As such, the information provided to the judicial officer when viewed in its totality was credible, compelling and corroborated.
• As to the entry into the unit without knocking, the Crown submits that the entry contemplated was authorized in the search warrant, and no announcement was required. Further, the issue of surprise, the ability of an accused to easily dispose of drugs, and the safety of officers and accused persons provided exigent circumstances whereby a knock was not required.

ANALYSIS

[22] The court plays an important role in reviewing search warrants. “The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.”[^2]

[23] The Court of Appeal has provided guidance as to how to approach a search warrant based on minor errors, or acts or omissions in an ITO:

However, the review is not an exercise in examining the conduct of the police with a fine tooth comb, fastening on their minor errors, or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial, rather than the sufficiency of the evidence in support of the application.[^3]

[24] The grounds for issuing a search warrant is well settled:

The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”. The phrase “reasonable belief” also approximates the requisite standard.[^4]

[25] The search warrant was executed at a motel unit. Nevertheless, I accept that a motel unit, although a temporary residence, still attracts a reasonable expectation of privacy.

[26] An ITO is an ex parte application. “The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts.[^5]

[27] What is the role of the reviewing judge when reviewing a search warrant?

The reviewing judge does not substitute his or her view for that of the authorizing judge. 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.[^6]

[28] In this case, the officers obtained a great deal of information from the confidential informants. In these circumstances, courts have often repeated that the information must be credible, compelling and corroborated. As Wilson J. said in Debot[^7]:

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.

[29] When assessing the credibility-based probability of a search warrant, guidance was provided in R. v. Morris.[^8] As Cromwell J.A. set out at para. 30:

Without attempting to be exhaustive, it might be helpful to summarize briefly the key elements of what must be shown to establish this “credibility-based probability”:

(i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place.

(ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.”

(iii) The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief.

(iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances.

[Citations omitted]

[30] In this case, the police received and confirmed by way of corroboration, some of the information from the confidential informants, which proved to be entirely accurate:

This adds at least some limited credibility and reliability to the information from the confidential sources. Information may be confirmed and corroborated without necessarily providing evidence of the criminality alleged by the confidential informant.[^9]

[31] In this case, the confidential informants advised that Mr. Durette had a criminal record. This was corroborated by a CPIC search. In R. v. MacDonald[^10], Laskin J.A. acknowledged that a criminal record by itself does make out reasonable probability. However, he noted at para. 23:

Accepting that to be so, the cogency of the criminal record depends on its similarity to the criminal activity alleged by the tipster, and the age of the record. Here, the applicant was convicted of possession of a prohibited firearm, the very criminal activity the tipster alleged, and that conviction was registered within two years of the anonymous tip. These considerations give the criminal record a fair measure of cogency.

And, as Laskin J.A. concluded at para. 24:

Overall, the appellant’s record together with the confirmation of the detailed biographical information given by the [anonymous] tipster, reasonably support the trial judge’s conclusion that the authorizing justice could have granted the authorization.

THE EXECUTION OF THE SEARCH WARRANT

[32] The search warrant as issued, did not require the police officers to knock and announce their entry. The Supreme Court of Canada has indicated that, “Except in exigent circumstances, the police officers must make an announcement prior to entry”[^11] (emphasis added). The Supreme Court of Canada reinforced this principle in R. v. Cornell[^12], but elaborated on exigent circumstances in connection with drug seizure search warrants. As the court noted at para. 27:

The police had reasonable grounds to be concerned that the evidence to be found would be destroyed having regard to the fact that there were reasonable grounds to believe that cocaine would be found in the premises and that it is a substance that may be easily destroyed.

The Court further noted:

It was reasonable for the police to be concerned about their safety and the safety of other occupants, given their experience that those who traffic in cocaine frequently are violent, and the fact that a cocaine trafficker who associated with violent people was welcome in their residence.

[33] When I consider the totality of the circumstances, I am satisfied that there were reasonable and probable grounds for the issuance of the warrant. In coming to that determination and applying the principles above noted, I note that the confidential informants provided information about the presence of cocaine in Mr. Durette’s residence at the Bel Air Motel. Although they were unproven sources, they had provided reliable information and as known informants, they were accountable to the police for information provided. The police corroborated some information provided, including Mr. Durette’s previous lengthy record, his ownership of the van and its location at the unit in front of the Bel Air Motel. The record was for five previous convictions of a similar nature over an extensive period of time. Although there was a gap of about twenty-five years where there were no convictions, the gap was closed by further convictions of a similar nature in 2006. The information provided in the ITO was fulsome, and I am not satisfied that there was any attempt to mislead the judicial officer.

[34] I am also satisfied that the no-knock entry here represented exigent circumstances. Although Mr. Durette had no record for violence, he had a substantial criminal record. An announced entry could easily have provided an opportunity to destroy the evidence. In addition, there was a concern for safety, not only for the officers, but for potentially any occupants in the residence.

R. v. GRANT ANALYSIS

[35] I am satisfied that there was no breach of Mr. Durette’s rights with respect to this search warrant authorization and execution. I am also satisfied that there was no violation of his rights with respect to the arrest. The arrest was made in accordance with a search warrant issued by a justice of the peace. Further, the search warrant was in the possession of the officers upon entering Mr. Durette’s residence.

[36] I am satisfied that there was a breach of his rights when he was questioned by the police upon immediate entry into his residence, and before he was given any caution or right to counsel. This was not a trivial violation, but it was fleeting in that Mr. Durette was immediately removed to a police car, where he was given a caution and right to counsel. There was no further discussion with him. Further, there is nothing in the execution of the search warrant which would appear to indicate that any utterance assisted the police in the search of the premises. Indeed, the ITO appeared to indicate that the confidential informants provided information as to the location of the drugs within Mr. Durette’s room.

[37] In any analysis of a breach of an applicant’s Charter rights, the Supreme Court of Canada has provided further guidance in R. v. Grant.[^13] The Court has provided a flexible approach in indicating that the following three factors should be reviewed:

(i) The seriousness of the Charter breach;

(ii) The impact of the breach on the Charter protected interests of the applicant;

(iii) Society’s interest in the adjudication of the case on its merits.

[38] The breach of the Applicant’s Charter rights was serious; any questioning before a right to counsel is serious. However, I am satisfied that it was fleeting, based on the events as they unfolded. In addition, the Crown did not rely on the utterance in the prosecution of the case, so the impact on the interests of the applicant was minimal. As a result of the search warrant, the police seized evidence, including cocaine, crack cocaine, currency and drug paraphernalia. In my view, in the circumstances of this case, society’s interest in the adjudication of the merits of this case is paramount. I therefore dismiss Mr. Durette’s application to exclude the physical evidence seized pursuant to the search warrant.

MULLIGAN J.

Released: August 26, 2013

[^1]: 1991 SCC 45, [1991] 3 S.C.R. 326.

[^2]: Fysh J., R. v. Morelli, [2010] 1 S.C.R. at para. 102.

[^3]: R. v. Nguyen, [2011] ONCA, 465 at para. 57.

[^4]: R. v. Debot, 1989 SCC 13, [1989] 2 S.C.R., 1140 at para. 47.

[^5]: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R., 992 at para. 46.

[^6]: R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R., 1421 at para. 56.

[^7]: R. v. Debot, supra, at p.215.

[^8]: 1998 NSCA 229, [1998] N.S.J. No. 492 (C.A.).

[^9]: R. v. Eftekhari, [2012] O.J. No. 4240 at para. 24.

[^10]: R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No 1673.

[^11]: Eccles v. Bourque, 1974 SCC 191, [1975] 2 S.C.R., 739 at p.6.

[^12]: 2010 SCC 31, [2010] 2 S.C.R., 142.

[^13]: 2009 SCC 32, [2009] S.C.J. 32.