ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-0024-00 & CR-12-0024-00
DATE: 2014-07-25
B E T W E E N:
HER MAJESTY THE QUEEN
Vern Brewer, for the Respondent
Respondent
- and -
MARCEL BRETON
Paul Erskine, for the Applicant
Applicant
HEARD: April 23, 2014
at Thunder Bay, Ontario
Mr. Justice T.A. Platana
Reasons on Challenge to the Search Warrant and Challenge to the Search and Seizure of 9082 Mapleward Road, Thunder Bay
[1] The Applicant brings this Application challenging the constitutional validity of a search warrant executed in this proceeding on the grounds that the information to obtain the warrant was flawed and did not meet the requisite test required to demonstrate that reasonable and probable grounds existed that a search of the property at 9082 Mapleward Road would provide evidence that the Applicant was in the unauthorized possession of a firearm. I had earlier ruled orally that the warrant was valid, and that I would release written reasons, which follow.
[2] The Applicant relies on ss. 7, 8, 9, and 11(d) of the Canadian Charter of Rights and Freedoms.
[3] A summary of the facts set out and relied on in the Applicant’s factum is as follows:
In November 2009 Detective Constable Kevin Veillieux of the Thunder Bay detachment of the Ontario Provincial Police (OPP) received information from a confidential informant. D/C Veillieux was at the time assigned to the Organized Crime Enforcement Bureau—Drug Enforcement Section of the OPP. His job was to investigate the illegal drug trade in the Northwestern region of Ontario. This is a joint task force comprised of members of the Ontario Provincial Police, Thunder Bay Police Service and the Royal Canadian Mounted Police. Prior to that D/C Veillieux had served with the Tri-Force Drug Unit which concentrates its investigations mainly on offences against the Controlled Drugs and Substances Act.
D/C Veillieux met with D/C Gagne of the Thunder Bay detachment of the OPP who, along with D/C Veillieux met with the confidential informant who provided the following information:
i. Marcel Breton lives at 9082 Mapleward Road in the city of Thunder Bay, Ontario;
ii. Marcel Breton does not work and is usually at home
iii. The house is on 17 acres of property. The residence is a two story brown house with a basement. There is a white garage next to the house with an attached shed and the property runs along a hydro line.
iv. Marcel Breton drives a grey/beige GMC/Chevy pick-up truck.
v. Marcel Breton does not like going out and is always at home.
vi. The confidential informant has seen Marcel Breton in possession of a .22 revolver handgun which he described as approximately eight inches long, black in colour with a wooden handle and taking .22 calibre rounds.
vii. The confidential informant feels Marcel Breton may hide the gun close to the house or garage when he’s not physically [in] possession of the hand gun.
viii. The confidential informant does not believe Marcel Breton possesses any handguns.
On November 26, 2009 D/C Gagne checked the OPP Records Management System (RMS) and read a report and spoke to Provincial Constable Kevin Maggrah of the Thunder Bay detachment who told D/C Gagne that he was dispatched to 9082 Mapleward Road at 5:51 a.m. on October 24, 2009 in response to a complaint of four wheelers driving on the lawn and throwing beer bottles. A lone male came out of the residence and identified himself as Marcel Breton “the owner of the house.” D/C Gagne states that “This occurrence confirms Informant #1 information that BRETON is residing at 9082 Mapleward Road, Thunder Bay.
On the same day D/C Gagne read a police report from the Thunder Bay Police Services RMS which stated that D/C Kelly Walsh had met with an informant in 2007 who stated Marcel Breton lives on Mapleward Road Thunder Bay and is involved in cocaine distribution and that Breton keeps cocaine in his house and has underground hiding compartments on his property. Despite identifying this confidential informant as a proven reliable informant D/C Walsh was unable to supply information as to how the informant had proven reliable in the past despite the fact he or she was identified as a numbered informant and has provided reliable information in the pass [sic] which has been corroborated by police.
On November 26, 2009 D/C Gagne and D/C Veillieux drove past 9082 Mapleward Road, Thunder Bay. From the road D/C Gagne observed an older blue car parked near an unknown building. D/C Gagne could not see the residence or property from his position. D/C Gagne later conducted a “Google Earth” search of 9082 Mapleward Road Thunder Bay. This is a public internet site available on personal computers. D/C Gagne states that the “[9082] Mapleward Road property to be much larger than a city residential property and it was located beside a hydro line. I observed a larger L-shaped building and two smaller outbuilding[s] located to the east of the main building. Again this confirms Informant #1 information regarding the location of the property and the outbuildings on the property.”
On November 27, 2009 D/C Veillieux contacted Hydro 1 Security and requested subscriber information for 9082 Mapleward Road. His notes indicate that he was informed that the account was registered in the name of an individual named Serge Gallant and had been since April 2006.
On November 27, 2009 D/C Gagne checked the Police Automated Registration Information System (PARIS) and discovered that Marcel Breton had a white 1997 Ford EST 4D, Ontario Licence BECX 318 registered in his name.
On November 30, 2009 D/C Gagne drafted an Information to Obtain (ITO) claiming that reasonable and probable grounds existed that a search of the premises, outbuildings and grounds of 9082 Mapleward Road, Thunder Bay would reveal that Marcel Breton had in his possession a firearm, to wit .22 Revolver without being the holder of a licence under which [he] may possess it contrary to section 91(1) of the Criminal Code of Canada together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence contrary to section 95 (b) of the Code for a purpose dangerous to the public peace contrary to section 88 of the Code.
[...continues verbatim exactly as in the source...]
[77] The motion to exclude the evidence is dismissed.
The Hon. Mr. Justice T.A. Platana
Released: July 25, 2014
COURT FILE NO.: CR-10-0024-00 & CR-12-0024-00
DATE: 2014-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MARCEL BRETON
Respondent
REASONS ON CHALLENGE
Platana J.
Released: July 25, 2014
/nf