ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13900001630000
DATE: 20140324
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALGON CLARKE
Defendant/Applicant
K. Aird, for the Crown/Respondent
J. Miglin, for the Defendant/Applicant
HEARD: February 25, 26, 27 and March 3, 2014
B.P. O’marra j.
ruling
[1] On March 3, 2014 I dismissed an application pursuant to ss. 8 and 24(2) of the Charter to exclude certain evidence seized from a residence and a motor vehicle. These are my reasons.
overview
[2] On January 12, 2012 a search warrant was issued related to a dwelling at #37 – 400 Tailfeather Crescent, Mississauga and a 2004 Toyota Highlander located at that address.
[3] The Affiant on the Information to Obtain (“ITO”) was Detective Constable Jennifer Peck. The warrant authorized the seizure of drugs and offence-related property. The ITO specified the offence as possession of cocaine for the purpose of trafficking contrary to s. 5(3)(a) of the Controlled Drug and Substances Act.
the applications
[4] The Applicant sought the following:
Leave to cross examine the Affiant on the ITO.
An order pursuant to ss. 8 and 24(2) of the Charter excluding all evidence allegedly seized at the dwelling and motor vehicle specified.
[5] The Applicant challenged the validity of the search warrant based on the following:
• Misrepresentation, falsehoods and material omissions in the ITO;
• bald conclusions without supporting evidence in the ITO;
• lack of grounds to believe that the Applicant resided at the specified address; and
• lack of grounds to believe that evidence of the specified offence would be recovered at the dwelling and motor vehicle specified.
the law
[6] A judicially authorized search warrant is presumed to be valid. The onus is on the accused to demonstrate that the ITO was insufficient.
R. v. Morelli, 2010 SCC 8 at para. 131.
[7] On a review of the sufficiency of a warrant the issue is whether there was credible and reliable evidence forming 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.
R. v. Morelli, at para. 40.
[8] Where the Affiant relies on a confidential informant to establish grounds for the search warrant the Court must apply the principles set out in R. v. Debot 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168.
[9] The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts.
R. v. Araujo 2000 SCC 65, 2000 S.C.C. 65 at para. 46.
[10] The reviewing judge considers the record as amplified on review as to whether the authorizing judge could have granted the authorization.
R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 1452.
[11] The reviewing Court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.
R. v. Araujo, at para. 58.
R. v. Li, 2013 ONCA 81, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 142.
[12] The existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant but their sole impact on review is to determine whether there continues to be any basis for the decision of the authorizing judge.
R. v. Garofoli, at para. 1452.
[13] When material facts militate against issuance of the warrant they should be disclosed in the ITO. Inclusion of facts inconsistent with the belief of the Affiant demonstrate good faith.
R. v. Martens, 2004 BCSC 1450, paras. 55-57.
[14] Erroneous or false information must be excluded from consideration as to whether there was any reasonably believable evidence that could have formed a basis for the warrant. In some cases the fraud or misleading component may taint the remaining parts of the record on review.
record on review
[15] I granted leave to cross-examine the Affiant limited to paragraph 6 of the ITO. The amplified record on review consisted of the following:
The ITO sworn January 12, 2012;
the cross-examination of the Affiant; and
various documents filed on consent.
grounds to believe that drugs and related property were at the places to be searched
[16] At page 7 of the ITO the Affiant set out her belief on reasonable and probable grounds that cocaine and other specified items were located at #37 – 400 Tailfeather Crescent, Mississauga and the particular motor vehicle. The redacted grounds for belief were summarized as follows:
(a) The information provided by three separate, unrelated confidential sources in relation to Trafficking of Crack Cocaine by a male known as “Puss”. The sources are not known to each other and therefore could not of (sic) collaborated together to provide the same information.
(b) “Puss” has been confirmed to be Algon Clarke with a date of birth of October 20th, 1973.
(c) CSI saw “Puss” on December (blank) 2011 in possession of crack cocaine and bought crack cocaine from him.
(d) Clarke resides at #37 – 400 Tailfeather Crescent in Mississauga.
(e) CS3 purchased crack cocaine from “Puss” on (blank) December, 2011.
(f) On December 15th 2011 and January 12th, 2012 I along with Detective Heitzner, DC Freeman, DC Pischedda, DC Jones, DC Harnett and DC Erdis conducted observations of Clarke trafficking cocaine. Three separate buyers were arrested and charged with Possession of Cocaine.
(g) It is obvious from the information provided by the confidential sources and from my observations that “Puss” is very active in the sale of crack cocaine.
evidence that the applicant trafficked in cocaine
A) confidential informants
[17] The ITO included information from three confidential informants.
(i) CI #1 – Paragraph 1 of the ITO (redacted)
[18] In November of 2011 the Affiant met CI #1 who provided the following information:
(a) CS1 has known a male who uses the nickname “Puss” for approximately three years.
(b) “Puss” deals in Metropolitan Park, located at Church Street and Queen Street in the early morning hours, between 2:00 am and 6:30 am.
(c) CS1 buys crack cocaine.
(d) (all redacted)
(e) “Puss” is the main dealer in the park since his partner “Ninja” was arrested about six months ago when police charged him with drug possession.
(f) “Puss” is described as male, black, 6’, 200#, approximately 40 years old.
(g) CS1 meets “Puss” in the park and purchases crack cocaine from him.
(h) CS1 states that “Puss” only carries a small amount of cocaine on his person and when he needs more, “Puss” attends his vehicle to get more product.
(i) “Puss” parks his vehicle south of Queen Street in the area of Church Street and Adelaide Street or Richmond Street.
(j) CS1 believes “Puss” to live in the west end of the city towards Mississauga or Brampton.
(ii) CI #2 – paragraph 4 of the ITO
[19] On December 14, 2011 P.C. Romano advised the Affiant that he had received the following information from CI #2:
(a) “Puss” has been dealing in Metropolitan Park every night for the past week.
(b) CS1 just bought crack cocaine from him.
(c) (all redacted)
(d) “Puss” packages his crack cocaine in clear plastic twistys. (sic)
(e) “Puss” has been wearing similar clothes for the past couple of nights, including a puffy blue bomber jacket with fir (sic) around the hood and the hood up, black boots and jeans.
(iii) CI #3 – paragraph 7 of the ITO
[20] On December 22, 2011 the Affiant received the following information from CI #3:
(a) On December (blank) 2011, the CS3 attended the area (sic) Metropolitan Park and bought crack cocaine from a male known as “Puss”.
(b) CS3 described “Puss” as male, black, 6’2, 250# (sic), wearing a black jacket with the hood up.
(c) CS3 provided a cell phone number for “Puss” as 4163898288.
B) investigative checks on december 14, 2011 (ITO Paragraph 3)
[21] The Affiant reviewed a Field Information Report (“FIR”) submitted by P.C. Freeman that included the following information:
On June 2, 2011 at approximately 5:30 am Algon Clarke was investigated at Metropolitan Park. The report indicated a date of birth of October 20, 1973 and listed “Puss” as Clarke’s nickname. Clarke was described as male, black, 6’3, 220lb with dread locks and a beard.
[22] Exhibit 4 on this Application is a copy of the FIR.
[23] Further on December 14, 2011 the Affiant reviewed a FIR submitted by P.C. Senyk with the following information:
On December 5, 2011 at approximately 6:00 am Algon Clarke was found loitering in the area of Church and Queen Street.
[24] Exhibit 5 on this Application is a copy of this FIR. The additional information on the FIR is a description of Mr. Clarke as a black male, 6’2” and 249 lb.
[25] A CPIC check of Mr. Clarke revealed that he had a criminal record from 1998 including Possession for the Purpose of Trafficking a Controlled Substance.
[26] Exhibit 6 on the Application is a copy of the CPIC check dated December 14, 2011.
C) surveillance of drug transactions on december 15, 2011
[27] Paragraph 6 of the ITO refers to three alleged drug transactions involving the Applicant as follows:
On the 15th of December, 2011 I along with Detective Heitzner #702, Detective Constable Freeman #8425, Detective Constable Pischedda #6383, Detective Constable Jones #99777 and Detective Constable Harnett #9120 of Toronto Police Service 51 Division Major Crime conducted observations of Clarke with the objective to observe Clarke trafficking and arrest a buyer. At approximately 4:00 am Detective Heitzner advised me of the following:
a. Detective Heitzner observed Clarke on the south west corner of Queen Street East and Victoria Street.
b. At approximately 4:22 am, Detective Heitzner observed Clarke in a drug transaction with a male, identified as (redacted) was arrested a short distance away and charged with Possession of Cocaine.
c. At approximately 6:30 am I observed Clarke in a drug transaction with a female who was arrested a short distance away with a second male. Both people were released no charges on scene as they were not found in possession of cocaine.
d. At approximately 7:02 am, Detective Heitzner advised me that he observed Clarke in a drug transaction with a male identified as (redacted) was arrested a short distance away and charged with Possession of Crack Cocaine.
[28] The Applicant was granted leave to cross examine the Affiant on this portion of the ITO. That evidence is part of the amplified record on review. Her testimony included the following:
the Affiant’s information was based in part on her own observations as well as information from other members of the surveillance team that morning
the three incidents occurred at a time of day and near the same location as described by the three confidential informants
the first incident (Paragraph 6 b of the ITO)
[29] The first incident at approximately 4:22 am was based on information relayed to the Affiant by other members of the team. That information included the following:
(a) a male met and talked with Mr. Clarke (the target)
(b) the other male handed something to the target and then walked away
(c) the other male was shortly thereafter arrested and found in possession of cocaine
[30] On the Application I was referred to transcripts from the Preliminary Hearing. The officers who observed this first incident testified that the hands of the other male and the target were in contact and it appeared that something was handed to the target. They did not see what was handed over.
the second incident (paragraph 6 c of the ITO)
[31] This was based on the Affiant’s own observation. On the Application she provided the following further information:
(a) the target met a female with another male nearby
(b) the female handed something to the target and then bent over to pick something up
(c) the Affiant did not see what was handed to the target or if anything was handed back to the female
(d) the female and other male were arrested shortly thereafter but released unconditionally when no drugs were recovered from them
the third incident (paragrpaph 6 d of the ito)
[32] Another officer told the Affiant that a male had interacted with the target. The other male was shortly thereafter found in possession of cocaine and arrested.
[33] In cross examination the Affiant did not recall that only a small quantity of drugs were recovered.
[34] I was referred on review to evidence at the Preliminary Hearing where other officers testified to finding “just a few little bits” of cocaine.
D) surveillance on january 12, 2012
[35] Paragraph 9 of the ITO is based on information provided to the Affiant by another officer.
On the 12th of January 2012, Detective Heitzner advised me of the following:
a. At approximately 5:41 am he observed Clarke in the area of Queen Street East and Church Street. A vehicle bearing Ontario licence plates of BCEX073 pulled up to the curb and Clarke got into the passenger side of the vehicle.
b. Detective Heitzner, DC Pischedda, DC Erdis and DC Harnett followed the vehicle to Victoria Street south of Adelaide Street East. Clarke exited the passenger side of the vehicle as it waited and entered the driver’s side of a Toyota Highlander bearing Ontario licence plates AFKH439 which was parked on the west side of Victoria Street sought of Queen Street. Clarke sat in the driver’s seat for a couple of minutes, fidgeting with something and then exited the vehicle.
c. Clarke then entered the passenger side of the awaiting vehicle which then drove back to the area of Victoria Street and Queen Street where he exited the vehicle.
d. The vehicle was stopped a short distance away and where DC Harnett and DC Pischedda investigated the driver who was identified as Ian Clydesdale, with a date of birth of August 29th, 1983. Clydesdale was found to be in possession of crack cocaine and charged accordingly.
e. Detective Heitzner observed Clarke loiter in the area of Queen Street East and Victoria Street for approximately fifteen minutes then walk back to his vehicle, the 2004 Toyota Highlander bearing Ontario licence plates AFKH439 which was still parked on Victoria Street south of Adelaide Street East.
f. Clarke entered the driver’s side of the vehicle with a key and drove away.
g. Detective Heitzner, DC Freeman, DC Erdis, DC Harnett, DC Pischedda and DC Jones followed Clarke to #37 – 400 Tailfeather Crescent, where he parked the vehicle and entered the residence.
h. Detective Heitzner, DC Freeman, DC Pischedda, DC Harnett, DC Erdis and DC Jones are currently on scene watching the residence of #37 – 400 Tailfeather Crescent and the vehicle AFKH439.
[36] Surveillance of the target on January 12, 2012 started in the early hours of the day and at a location that mirrors the information provided by the three confidential informants. The circumstances provide compelling evidence that the target met and sold cocaine to a male. The target is observed to drive the target vehicle to the target address in Mississauga.
[37] The Applicant did not challenge the information provided by the three confidential informants. They each provided details of cocaine sales by a male black person they know as “Puss”. All three describe the drug sales as occurring in the very early hours near a particular park in Toronto. The information they provided corroborates each other in important aspects. Surveillance by the police on December 15, 2011 and January 12, 2012 further confirmed the information provided by the informants. Based on the principles in R. v. Debot 1989 13 (SCC), [1989] 2 S.C.R. 1140, there was a reasonable basis to believe that the Applicant was actively dealing cocaine in Toronto in the early hours of various dates near a particular location.
evidence that the applicant resided at the target address
[38] Confidential informant #1 told the Affiant in November of 2011 that he believed “Puss” lived in the west end of the city towards Mississauga or Brampton.
ITO, paragraph 1 j.
[39] The FIR dated June 2, 2011 based on police contact with the target listed his home as #37 – 400 Tailfeather Crescent, Mississauga and a cell phone # 416 389 8288.
ITO, paragraph 3 a and b, Ex 4 on the Application.
[40] On December 14, 2011 the Affiant ran a driver’s licence check on Algon Clarke. The result referred to a motor vehicle (that was not the target vehicle) and an address of #37 – 400 Tailfeather Crescent, Mississauga.
ITO, para. 3 f, and Ex. 7 on the Application.
[41] On January 12, 2012 police surveillance offered evidence that the target sold cocaine to a male in the early hours in Toronto and then drove directly to #37 – 400 Tailfeather Crescent, Mississauga. He then parked the vehicle and entered the residence.
[42] The amplified record on this Application revealed two items of evidence that were relevant to the residence issue but not disclosed in the ITO:
(1) Paragraph 3 c) of the ITO refers to police contact with the target on December 5, 2011. Ex. 5 on this Application is a copy of the FIR for that date. It refers to the target having “no fixed address”.
(2) Paragraph 3 d) of the ITO refers to a CPIC check run by the Affiant on December 14, 2011. A copy of the CPIC report was filed as Ex. 6 on this Application. It shows an address for the target of 27 Amantine Crescent, Brampton.
[43] That latter information was not included in the ITO even though it was available to the Affiant almost a month before the ITO was sworn.
[44] The evidence of “no fixed address” and the Brampton address should have been included in the ITO. However, the addition of that information on the amplified record does not mean there was no reasonable basis to believe that the target’s residence was the Mississauga address.
[45] By the time the ITO was sworn on January 12, 2012 there was significant evidence that the target did reside at the Mississauga address. The authorizing justice was not required to find definitively that he resided at the target address. The surveillance evidence of January 12, 2012 where the target was followed from a drug deal in Toronto to the target residence combined with other links to that residence provided a reasonable basis to believe he lived there.
[46] I do not find the omissions were in bad faith or with intent to mislead. By the time the ITO was sworn on January 12, 2012 there was significant evidence that the target lived at the target address. There was very little evidence that he lived elsewhere.
[47] The available evidence portrays the target as an active trafficker in cocaine in Toronto with a residence in Mississauga. There were reasonable grounds to believe that drugs, debt lists, proceeds of crime and related items would be found at the residence and in the vehicle.
result
[48] Application dismissed.
B. P. O’Marra J.
Released: March 24, 2014
COURT FILE NO.: CR13900001630000
DATE: 20140324
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALGON CLARKE
Defendant/Applicant
REASONS FOR JUDGMENT
B. P. O’Marra J.
Released: March 24, 2014