ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-90000080-0000
DATE: 20140117
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
ELIJAH LOWE and ISHMAEL LOWE
Applicants
Jason Mitschele and Chris de Sa, for the Crown
Adam Newman for the Applicant Elijah Lowe
Stephen Kennedy for the Applicant Ishmael Lowe
HEARD: November 18, 22, 25, 28, 29, 2013
Harvison Young J.
Overview
[1] The applicants Elijah Lowe and Ishmael Lowe stand charged with a number of counts arising from the discovery of approximately $46,000 in cash and approximately 300 grams of cocaine in the course of the execution of a search warrant. They seek to have this evidence excluded on the basis that their rights under s. 8 of the Charter were violated and that, in the circumstances, admitting the evidence pursuant to s. 24(2) of the Charter would bring the administration of justice into disrepute.
[2] The central issue in this application is whether the search warrant should be set aside and the search leading to the discovery of the cash and cocaine thus deemed warrantless, as the applicants assert. Here, as is often the case, the police had received a tip from a confidential informant (“CI”) and used this information in the Information to Obtain (“ITO”). The version of the ITO provided to the defence was heavily redacted because of informer privilege and the Crown conceded that the redacted ITO could not support the issuance of the search warrant. Accordingly, the Crown sought to rely on “Step Six” of the procedure initially contemplated by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461. The use of Step Six permits the reviewing judge to consider as much of the unredacted ITO as necessary to support the authorization
only if … the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfil that function. (Garofoli, at p. 1461).
[3] The Crown prepared a draft judicial summary of the redacted or undisclosed content of the ITO, which was marked as a sealed exhibit and provided only to me. I revised it and, having marked my revised version as a sealed exhibit, provided it to the Crown. The Crown advised that my revisions were acceptable and this version was, accordingly, provided to the defence.
[4] After receiving and reviewing the judicial summary, I permitted the cross examination of Detective Constable (“DC”) Shane Armstrong, the affiant to the ITO, with the consent of the Crown. As a result of the cross examination, I requested the Crown to provide me with a sealed affidavit from the affiant attaching a document referred to in the unredacted ITO, which was provided and marked as a sealed exhibit. I then revised the judicial summary accordingly.
[5] Counsel for the applicants did not object to the procedure used per se, or to the judicial summary provided, but they did object to the application of Step Six to this case at all. They argued that the present situation is not a case that meets the test articulated by Sopinka J. in Garofoli because, in essence, so many of the details of the ITO were redacted that the accused could not be “sufficiently aware of the nature of the excised material to challenge it” and that their rights to make full answer and defence would be unfairly compromised.
[6] As I will detail further below, counsel for the applicants also submitted that even if the court did apply the Step Six procedure and consider the unredacted ITO, the search warrant was invalid because, in light of the judicial summary and redacted ITO as well as the evidence elicited from the cross examination of the affiant, it could not be said that the CI had provided reliable information that a firearm would be found in the apartment. In particular, they submitted that the considerations set out in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, had not been satisfied, particularly with respect to the corroboration of the information of the CI and the weaknesses in relation to the credibility of the CI. The applicants also maintained that the affiant was not full frank and fair.
[7] I should pause to note at this point that counsel for the applicant Elijah Lowe also alleged a second Charter violation. Mr. Newman submitted that the police violated the applicant’s rights under s. 10(b) because the arresting officer did not immediately advise the applicant of his rights to counsel and, after giving such information, questioned the applicant despite his stated desire to speak with his lawyer. The Crown does not rely on any statements made in the course of such questioning. However, the defence submitted that the police’s actions are evidence of systemic misconduct that the court should consider when deciding whether to admit the drugs and cash found through the search warrant under s. 24(2) of the Charter and the considerations set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. I will discuss s. 24(2) below.
The Facts
[8] In late March 2010, the police were investigating a complaint relating to the possession of illegal firearms, ammunition and cocaine. Elijah Lowe was the target of the investigation and the investigated address was 10 Turntable Crescent, unit 01, Toronto. The CI provided specific information that set out first-hand knowledge indicating that he/she had recently observed a firearm. The firearm was described with precision. The CI provided a very detailed account regarding the date(s), circumstances, location(s) and timing of the observation(s). The CI also provided various background particulars about the applicant, including his description, and information about the vehicle he drove (a blue four-door Honda Civic). The CI also identified or recognized Elijah Lowe from a RICI photo that he was shown as the person about whom he/she was providing information and stated that he supplied cocaine to bars near Dupont Street and Lansdowne Avenue in Toronto.
[9] The police investigated with a view to corroborating the information they had received. This investigation confirmed Lowe’s identity, his association with a four-door Honda Civic and that he had a prior conviction for drug possession and had been investigated in the past for firearms-related offences.[^1] The police also obtained some corroboration of other key details that the CI provided, which are redacted in the ITO provided to the defence, and confirmed his residence at 10 Turntable Crescent, unit 01, which is just northeast of Dupont Street and Lansdowne Avenue.
[10] On April 15, 2010, DC Armstrong sought a search warrant for Lowe’s residence. The first request was unsuccessful, so DC Armstrong revised the ITO by adding the following three subparagraphs (as redacted):
[redacted] 2010 [redacted] The Source [redacted] advised that s/he observed [redacted] LOWE [redacted] hand gun [redacted]
Thursday April 15, 2010 at 2:20PM the affiant and Detective Constable PAGLIA observed LOWE driving a silver Honda [b]earing Ontario marker ATBS 297. The affiant then observed LOWE unlock the front door of 10 Turntable Crescent Unit 01 and enter. Detective Constable PAGLIA remains conducting surveillance on the address.
The Source is registered with the Toronto Police Service and has been proven reliable. The Source continues to contact the Affiant on a regular basis. [redacted] [Emphasis in original.]
[11] The judicial summary of these paragraphs reads:
The redacted information discloses particulars of the exact date\s, circumstances, and locations where a gun was observed. The type of gun is also identified.
No redactions.
The redacted information indicates that the source has a criminal record. It does not indicate whether it includes convictions for honesty related offences.
[12] The second request for a search warrant was successful, and a Criminal Code search warrant was granted to search 10 Turntable Crescent, unit 01. The police were looking for firearms and ammunition. The target was Elijah Lowe, but his brother Ishmael was also known to police as his name previously had been discovered in police database searches for Elijah. These results indicated that Ishmael had a firearms-related criminal conviction.
[13] That night, at 9:46 p.m., police officers from 14 Division executed the warrant with the assistance of the Emergency Task Force (ETF).
[14] The ETF used a distractionary device while breaching the door to the unit and police officers from 14 Division kept watch on the street outside the townhouse complex. Within seconds of the ETF breaching the door, the outside officers saw a safe fall to the ground from the southeast window of the unit. The safe broke open upon impact. DC Paglia, who was placed in charge of seizing the safe, located over $40,000 cash and 146.37 grams of crack cocaine from the safe.
[15] Moments later, an ETF officer found and arrested Elijah Lowe coming from the room with the window from which the safe had fallen. The police located an additional 32.48 grams of cocaine, approximately $700 and an ID for Elijah Lowe in the room where he was arrested.
[16] Another ETF officer located and arrested Ishmael Lowe as he was coming out of a bathroom. Inside that bathroom, officers found 139.24 grams of cocaine in the toilet. The police also located 13.45 grams of crack, a bullet, a safe containing over $7000 and a passport in the name of Ishmael Lowe in Ishmael’s bedroom.
[17] The two men were arrested and charged for the items in their vicinity.
(Decision continues exactly as in the original judgment.)
[^1]: As will be discussed below, the Honda was described as silver according to the vehicle registration and as blue according to other sources, and the applicants submitted that this undermines the corroborative utility of sightings that describe the car as blue.
[^2]: Paragraph 5 referred to a “field information report” (“F.I.R.”), but Crown counsel has informed me that the police now refer to this type of document as a C.I.R. and that there is no distinction between a C.I.R. and a F.I.R. To be consistent, I will refer to the F.I.R. as a C.I.R.