OSHAWA COURT FILE NO.: CR-13-13360

DATE: 20131213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM STEELE

Defendant

T. Fitzgerald, for the Crown

A. Herscovitch, for the Defendant

HEARD: December 10, 2013

HEALEY J.

NATURE OF THE APPLICATION

[1] This is an application to exclude evidence obtained by the Toronto Police Service during the execution of a Controlled Drugs and Substances Act (CDSA) search warrant on November 22, 2012, on the basis that reasonable grounds did not exist upon which the judge, acting judicially, could issue the warrant. In the result, the applicant submits that the search of the property in which he resided constituted a breach of his s. 8 Charter right to be secure against unreasonable search and seizure, and that the admission of the evidence would bring the administration of justice into disrepute.

[2] The argument of the applicant focuses on the allegation that the information provided to the police by a confidential informant did not meet the threshold of being either compelling or credible, and that the police did not go far enough to corroborate the information provided by the informant before applying for the warrant.

FACTS

[3] The applicant is charged with multiple firearm and weapons offences, and possession of marijuana for the purpose of trafficking.

[4] On November 22, 2012 the lead investigator assigned to this case prepared an Information to Obtain (“ITO”) a CDSA warrant to search 1921 Dundas Street East in Whitby, believed to be the residence of the applicant, as well as his vehicle, for the purpose of attempting to locate marijuana and related paraphernalia of trafficking. The warrant was signed by Justice L. Marshall on November 22, 2012. The warrant was obtained on the basis of a tip from a confidential informant.

[5] The vetted ITO provides that the following information was obtained from the informant:

• A male by the name of Adam Steeles resides at 1921 Highway #2 in the City of Whitby.
• Adam Steeles is 26 years of age, plus or minus 2 years.
• Adam Steeles is described as male, white, skinny, 5'9" 150 to 160 pounds.
• His residence is across the street from a Big Al's Aquarium.
• Adam Steeles lives in a bungalow with a brown front door.
• Adam Steeles has an aggressive pit-bull.
• Adam Steeles sells marijuana in packages from ounces to as high as a half a pound.
• Adam Steeles is a heavy dealer and many people attend his address on a regular basis for the purpose of buying marijuana.
• Adam Steeles owns a Cadillac Deville, black in color.

[6] The ITO also indicates that the informant has not provided information to the police in the past, and provides no other information about this individual.

[7] The Applicant has a criminal record which the affiant obtained through CPIC check prior to swearing the ITO. The record identified by the affiant includes seven entries for criminal convictions in Oshawa, Ontario, four of which are registered in Oshawa Youth Court, including convictions for weapons charges, property crimes charges and drug charges. In February, 2004 he received a conviction for possession of a Scheduled Substance contrary to the CDSA, and a further conviction for the same offence on September 30, 2004. On June 20, 2011, the applicant was placed on probation following convictions for possession of a Schedule II Substance and Possession of a Weapon while Prohibited. The applicant was a bound by a Weapons Prohibition Order issued at the City of Oshawa on April 23, 2012 for a period of five years.

[8] It is conceded by defence counsel that sufficient follow-up investigation was done prior to obtaining the warrant to corroborate the information regarding the applicant’s residential address, identifying information such as height and weight, and vehicle ownership.

[9] Surveillance conducted on the residence on November 22, prior to obtaining the warrant, revealed the following information:

• the residence at 1921 Dundas Street East is a single-story bungalow with a brown door.
• There was a "Beware of Dog " sign on the property.
• At approximately 1:35 p.m. an unknown male arrived at the residence by vehicle and entered through the front door, which was opened by the applicant. Three minutes later the male exited the front door, got back into his vehicle and left the address.
• The officer conducting the surveillance identified the applicant by photograph when he came out of the residence to rake leaves on his front lawn, and he was observed to exit the front door with a pit bull.

[10] At approximately 5:00 p.m. police executed the search warrant and located several jars of marijuana on the shelves in the kitchen. Elsewhere in the residence, police located a crossbow, a sword, bear spray, shotgun shells and a loaded semi-automatic handgun.

STANDARD OF REVIEW

[11] Section 8 of the Charter guarantees a broad right to be secure from unreasonable search and seizure, which protections go at least as far as protecting an individual’s reasonable expectations of privacy. Therefore, 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; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 39.

[12] In reviewing the sufficiency of the warrant application, however, the Supreme Court of Canada has articulated the test to be 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; R. v. Morelli, supra, at para. 40. A reviewing court must not substitute its own view, but rather must assess whether there was sufficient credible and reliable evidence to find reasonable and probable grounds to believe that an offence had been committed, and that evidence of that offence would likely be found at the times and place specified on the warrant: R. v. Morelli, supra, at para. 40.

POSITION OF THE APPLICANT

[13] Mr. Herscovitch submits that a weighing of the three concerns outlined by Lamer J. in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at para. 53 when considering evidence relied on by the police to justify a search - whether the information was compelling, credible and corroborated (the “three C’s”) - should have resulted in a denial of the warrant by Justice Marshall. In particular, he argues that the evidence was so weak as to be neither compelling nor credible, such that the need to corroborate the information took on a greater significance in this case. It is submitted that the police failed to take sufficient steps to corroborate the information provided by the informant before seeking the warrant. The totality of the circumstances do not justify the granting of a search warrant and the invasion of the applicant's reasonable expectation of privacy in his home, and his Charter protected interests, has been infringed.

POSITION OF THE CROWN

[14] The Crown's position is that each of the "three C's" referred to in Debot have been fully satisfied on the facts of this case, in particular because every aspect of the tip was corroborated. The Crown has acted within the scope of informer privilege by redacting all information that could "narrow the pool" of those who could be suspected of being the tipster, but the information otherwise provided reveals that there were sufficient grounds for Justice Marshall to conclude that drug-related offences may be occurring at the address searched, and that evidence of the crimes was likely to be found during the search. The Crown argues that in this case there was so much corroboration of otherwise innocuous information that such evidence as a whole increased the compelling nature of the information provided. Sufficient corroboration was undertaken by the investigating officers to strike the balance between assessing whether this was an informant acting out of malice, and not tipping the applicant off to the ongoing investigation.

ANALYSIS

[15] The overriding focus of this review is whether Justice Marshall had before her evidence sufficient to meet the requisite standard of “reasonable probability” that the execution of the warrant would bear fruit specific to the allegations contained in the sworn information. In cases where the allegation relates to possession of drugs, the totality of the circumstances must be such as to raise a reasonable probability that the targeted individual will be in possession of the suspected narcotics at the time of the search: R. v. Debot, per Wilson J. at p. 213 (S.C.C.); R.v. Lewis (1998), 1998 7116 (ON CA), 107 O.A.C. 46, 122 C.C.C. (3d) 481 (Ont. C.A.) at para. 15.

[16] Warning of the type of information that may be insufficient to meet such threshold is given in the Court of Appeal’s decision in R. v. Debot at pp.6-7, where Martin J.A. stated his view that a mere conclusory statement that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of a warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds are whether the informer's tip contains sufficient detail to ensure that it is based on more than mere rumor or gossip, whether the informer discloses his or her source or means of knowledge, and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. Martin J.A. went on to say in the same passage that not each of these criteria must be present in every case, but the totality of the circumstances must meet the standard of the necessary reasonable grounds for belief.

[17] Mr. Herscovitch argues that the information initially gathered from the tipster was completely non-compelling because no information was included about the basis of his or her knowledge or belief, or the currency of that knowledge or belief. He argues that, given the substantial vetting of the information, there is no way to know whether the informant’s statements came from personal observation, or whether they derived from multi-level hearsay. Further, there is nothing in the statements that reveals when this information came to the tipster’s attention, and given the applicant’s past convictions for drug related offences, some temporal evidence would be important to ensure that the informant was not referring to historical events. I agree with these submissions only in part, and in this respect the case is similar to R. v. Hosie, (1996), 1996 450 (ON CA), 91 O.A.C. 281, 107 C.C.C. (3d) 385 (Ont. C.A.) and R. v. Rocha, 2012 ONCA 707, 292 C.C.C. (3d) 325 (Ont. C.A.), where this kind of detail was lacking and contributed to a finding that the search warrant for a residence was invalid. Mr. Fitzgerald contends that the statement is phrased in the present tense, using the phrase “he sells”, and that this immediacy in the language gives rise to a reasonable inference that the trafficking is current. Detail is also provided about the type of drug sold, and reference to the quantities involved. However, I agree with the defence position that absence of detail regarding the basis of the knowledge could paint the rest of this scant detail with a sheen of potential unreliability and prevent the tip from rising beyond the level of potential rumor or a means of falsely implicating the target. However, a significant fact contained in paragraph 28 of the ITO is this: “The drugs were personally seen by the source within the residence in the month of November”. While this does not lead to an automatic conclusion about criminal activity, it is highly compelling, and distinguishes this case from Hosie and Rocha.

[18] In terms of the credibility of the informant, nothing is known about this individual from the ITO other than that he or she had never been used by the police in the past. Nothing is known of any possible criminal record, or what consideration, if any, the informant may have received from the police for the tip. Such facts could be important in an overall assessment of whether the requisite standard has been met: R. v. Sutherland (2000), 2000 17034 (ON CA), 139 O.A.C. 53, 150 C.C.C. (3d) 231 (Ont. C.A.) at para. 14; R. v. Zammit (1993), 1993 3424 (ON CA), 62 O.A.C. 272; 81 C.C.C. (3d) 112 (Ont. C.A.) at para. 26. The defence argues that the provision of information about any criminal record could not possibly provide identifying information so as to put the informant at risk, and excluding any such information through vetting of the ITO jeopardizes the constitutionality of the search. The Crown demurs, indicating that it cannot be gleaned from the ITO whether the provision of information about the informant’s criminal record, if such exists, would endanger the individual by narrowing the pool of potential tipsters. I find this position difficult to support given the revelation that the informant was someone who was inside the accused’s residence in the very month of his arrest. While this debate is difficult for the court to assess, without any rationale being provided in the ITO as to why such information has been omitted, such unrevealed information certainly cannot assist in justifying the search. The vetting of the information must only be done to the extent necessary to protect the overriding public interests, in this case, that of informer privilege: R. v. Durette, 1994 123 (SCC), [1994] 1 S.C.R. 469 at paras. 44-45. As previously stated, there is nothing in the material to permit the court to assess whether the vetting overshoots this mark, and in the result it must be concluded that the decision to treat the informant as credible is problematic. As stated in R. v. Lewis, supra, at para. 18, “the risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity”.

[19] The need for corroboration of the information prior to making the decision to conduct the search is addressed in R. v. Debot, supra, at para. 53, R. v. Zammit, supra, at para. 27, R. v. Kesselring, [1998] O.J. No. 3861 (Gen. Div.), at para. 12, affirmed 2000 2457 (ON CA), [2000] O.J. No. 1436 (C.A.). As explained by Salhany J. in Kesselring at para. 12, the verification of the tip must relate to the criminality of the information, as opposed to innocuous or biographical information, in order to protect individuals from unreasonable searches. Given my earlier findings regarding the compelling nature of the information, this case is not necessarily one that falls within the description by Wilson J. in Debot at page 218, where “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”. This case is distinguishable from R. v. Eftekhari, 2012 ONSC 5140 (S.C.J.) and R. v. Hosie, supra, where the validity of the warrant depended upon the sufficiency of the police investigation to corroborate the informer’s tip, because of the fact that there was nothing about the information or informer in substance that was particularly compelling or credible. Here we have, as previously noted, personal observations by the informant of “drugs” within the residence in November, and the only drug referred to throughout the ITO is marijuana.

[20] One of the corroborating facts obtained by the police was the accused’s prior record. As discussed by Lamer, J. at paras. 56-58 of Debot, such information may be relevant provided that it is not used to justify an otherwise unreasonable search, the reputation must be relevant to the ostensible reasons for the search, and the veracity of the reputation verified by the police. In this case the police relied upon police records and databases to verify the information that the target suspect may be a person inclined to be in possession of marijuana, and potentially involved in trafficking. The history of possession buttresses the reasonableness of seeking the warrant.

[21] As set out in the factum of the Crown at paragraph 5, virtually all of the innocuous information provided by the informant was verified by the police, from the fact that there was a pit bull in the residence, to the description of the residence, to the ownership and make of vehicle, along with identifying physical information. Support for the proposition that general, innocent information about the subject may be “compelling” if detailed and confirmed is found in R. v. MacDonald, 2012 ONCA 244 at paras. 19-24, and R. v. Eftekhari, supra, at para. 24.

[22] However, no evidence of criminal conduct was observed during the surveillance. The only observation leading to any kind of inference of trafficking was the appearance of an unidentified male at the residence, and his entry into the residence for a brief period of three minutes. On its own, this observation could never give rise to grounds for a search, but accompanied by the tip that the accused is a “heavy dealer and many people attend his address on a regular basis for the purpose of buying marijuana”, the observation takes on a modicum of significance.

[23] Mr. Herscovitch argues that the police should have gone further to ascertain whether the individual leaving the residence was in possession of cannabis, so as to assist in corroborating the informant’s tip. He states that, particularly given that there was no urgency to the search, further steps should have been taken prior to acting upon the tip. However, the police are not in fact required to corroborate the very criminality under investigation, particularly in so-called consensual crimes where further investigation may alert the subject of the investigation: R. v. Lewis, supra, at para. 22, R. v. Watts, 2012 ONSC 1865 (S.C.J.) at para. 25, R. v. Rocha, supra, at para. 22.

[24] In the final analysis, although the credibility of the informant was unascertainable, there remained sufficient evidence for Justice Marshall to determine that reasonable and probable grounds existed to justify the granting of the warrant. And while questions remain about the basis of the informant’s knowledge, it is a reasonable inference to draw that, having been permitted into the applicant’s residence, the informant may have sufficient familiarity with the applicant to be in a position to know of the presence of marijuana in the residence, or to have personally observed it there, as referenced in the ITO. The fact that a specific drug was identified, and information given about quantities sold, lends some credence to the conclusion that the informant may have had more than hearsay information about the applicant’s criminal activities. That all of the biographical information was confirmed, including place of residence from which the marijuana was said to be sold, gives added cogency to the information about criminal conduct. Finally, the criminal record can be given significance because of convictions for possession of prohibited CDSA substances. Based on all of the circumstances, the belief of the affiant that the applicant was selling marijuana, and that drugs and related paraphernalia may be found at his residence, was a reasonable one. The evidence was sufficient for Marshall, J. to make the same assessment, and accordingly the issuance of the warrant was justified and no breach of s.8 of the Charter has occurred.

THE CHARTER S. 24(2)

[25] In light of my conclusion that the applicant’s rights under s. 8 of the Charter were not violated, it is not necessary to consider the s. 24(2) issue. Counsel are commended for their able arguments regarding s. 24(2) both in their written material and submissions.

HEALEY J.

Released: December 13, 2013