ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AARON GREAVES-BISSESARSINGH
Tom Lissaman, for the Crown
Luka Rados, for the accused
HEARD: August 18-20, 2014
M.A. Code J.
REASONS FOR JUDGMENT
A. OVERVIEW
1The accused Aaron Greaves-Bissesarsingh (hereinafter, Greaves) is charged in a seven count Indictment with various offences arising out of a search of his residence. The police seized an unregistered and unlicensed firearm, an over-capacity magazine for the firearm, forty-five rounds of ammunition, and fifteen grams of marijuana. As a result of these seizures, on March 3, 2012, Greaves was charged with knowing possession of an unlicensed and unregistered firearm (s. 92(3) of the Criminal Code), unlicensed and unregistered possession of a firearm (s. 91(3)), careless storage of a firearm and careless storage of ammunition (s. 86(3)), possession of a prohibited device (s. 91(3)), possession of a firearm obtained by crime (s. 96(2)), and simple possession of marijuana (s. 4(1) and (4) of the Controlled Drugs and Substances Act).
2Greaves elected trial by judge alone and the entire case for the Crown was admitted without the necessity of calling any witnesses. The only issue raised at trial was the lawfulness of the search of Greaves’ residence. In this regard, Greaves brought a Motion alleging a violation of s. 8 of the Charter of Rights and seeking exclusion pursuant to s. 24(2) of all the evidence seized by the police.
3At the end of the trial I briefly reserved judgment. These are my reasons for judgment, both on the Charter Motion and on the merits of the case.
B. FACTS
4As noted above, there is no dispute concerning the facts of the case. The police obtained a telewarrant from a Justice of the Peace on March 3, 2012. Shortly before executing the search warrant, the police arrested Greaves at a subway station near his home. He provided the police with a key to his apartment and told them that there was a firearm in a duffle bag in his bedroom. The police used the key to enter the apartment and execute the search warrant.
5The police found a properly functioning Ruger semi-automatic 223 calibre rifle in a duffle bag in a bedroom. In the same bedroom they found an over-capacity 20 cartridge magazine, which is admittedly a “prohibited device” within the meaning of s. 84 of the Criminal Code. Finally, the police found forty-five cartridges of 223 calibre ammunition in a shoe box in the same bedroom. The police also seized a total of fifteen grams of marijuana, some of it on Greaves’ person and some in the bedroom.
6Greaves gave an admittedly voluntary, sworn, video-recorded statement to the police, shortly after the search, admitting that he lived at the premises in question with his aunt and two cousins and admitting that he was in possession of the items seized. It was also admitted at trial that the rifle was unregistered and that Greaves was unlicensed.
7The only count in the Indictment where the defence contested the merits of the Crown’s case was Count Six, alleging that the rifle was obtained by crime. The Crown conceded that there was no proof of this offence and the accused is, therefore, not guilty on Count Six.
8The defence concedes that all the other counts in the Indictment have been proved, if the evidence from the seizures is admitted. In other words, the only defence to these counts concerns the lawfulness of the seizures.
C. THE PROCESS OF THE SECTION 8 CHARTER MOTION
9The telewarrant obtained by the police on March 3, 2012 authorized a search of premises known as 627 The West Mall, apartment 1709, in Toronto. It was believed to be the residence of Greaves. The object of the warrant was to search for and seize a firearm and ammunition.
10The search warrant Information was sworn by D.C. Ceresoli. His grounds depended heavily on information provided by a confidential informant. As a result, the version of the Information that was disclosed to the defence was heavily edited. The s. 8 Charter Motion alleged that the grounds for the warrant, as disclosed in the edited Information, were insufficient and that the warrant could not lawfully have issued on this basis.
11No extrinsic evidence was filed on the Charter Motion, beyond the facially insufficient edited search warrant Information. The Crown conceded, responsibly and correctly, that the edited search warrant Information did not set out sufficient grounds to justify issuance of the warrant.
12In light of the above facts, the only issues on the s. 8 Charter Motion were as follows: first, the defence challenged the editing of the Information (the so-called “steps 2, 3, and 4”, as explained in R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 at para. 79 (S.C.C.)); second, leave to cross-examine D.C. Ceresoli was sought by the defence; and finally, the sufficiency of the search warrant Information was argued at “step six” of Garofoli, given the Crown’s concession that the warrant could not be sustained at “step five”.
13I was provided with a copy of the unedited search warrant Information that was before the issuing Justice of the Peace and that had remained sealed. This copy was made a sealed exhibit on the s. 8 Motion. The Crown also prepared a draft judicial summary of the edited portions of the Information and it was made a sealed exhibit on the Motion. I reviewed the Crown’s editing of the Information and suggested three areas where some of the editing could arguably be lifted, without identifying the confidential informant. The Crown reviewed these suggestions with D.C. Ceresoli, who was the confidential informant’s handler. After receiving advice from the handler, the Crown agreed with the three proposed revisions. At this point, a revised version of the edited Information was disclosed to the defence.
14I also reviewed the Crown’s proposed judicial summary of the edited portions of the Information. I suggested a number of revisions by handing the Crown my marked-up copy of the Crown’s proposed draft. Once again, the Crown reviewed the proposed revisions with D.C. Ceresoli and then agreed that the judicial summary, as revised, could be disclosed to the defence. At this point, a final version of the judicial summary was prepared and provided to defence counsel.
15The defence challenged four specific aspects of the editing and sought further disclosure. I was satisfied that the more detailed disclosure sought by the defence “might implicitly reveal his or her [the confidential informant’s] identity”, as McLachlin J. (as she then was) put it in R. v. Leipert (1997), 1997 367 (SCC), 112 C.C.C. (3d) 385 at 393 (S.C.C.). I declined to order further disclosure of the edited portions of the Information. Also see: R. v. Omar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 at 255 (Ont. C.A.).
16The defence also challenged the adequacy of the judicial summary, submitting that the general terms used in the judicial summary did not provide the defence with sufficient information about “the nature of the excised material to challenge it in argument or by evidence”, as required at “step six” of R. v. Garofoli, supra. For example, the judicial summary refers to “the source’s motivation for providing this information, indicating some self-interest”; “the source’s involvement in criminal activity”; and “the means by which the source obtained his or her knowledge”. Mr. Rados, counsel for the defence, submitted that these generalities did not enable submissions as to whether the criteria had been met for evaluating the reliability and credibility of an informant’s tip, as set out in R. v. DeBot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 at 218-219 (Ont. C.A.), aff’d (1989) 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.).
17I ruled that the exact nature of the confidential informant’s motivation, criminal activity, and means of knowledge might implicitly identify the informant. Accordingly, the judicial summary could not be amended to provide this further detail without infringing informant privilege. I also ruled that defence counsel could make his closing submissions in the alternative, and on the basis of hypotheticals, as counsel often do. For example, counsel could argue the sufficiency of the grounds on the hypothetical basis that the informant’s means of knowledge was mere second-hand hearsay, gossip, or rumour. Then, in the alternative, counsel could argue the sufficiency of the grounds on the hypothetical basis that the informant’s means of knowledge was detailed, first-hand observation. In that way, I would have the benefit of full argument on the s.8 issue without any violation of informant privilege. In the result, I ruled that the judicial summary was sufficient to allow a “step six” review of the search warrant Information.
18The final procedural step on the s. 8 Motion was counsel’s application for leave to cross-examine the Affiant. Many of the issues on which the defence had initially sought leave to cross-examine were resolved by further disclosure of the edited Information and by provision of the judicial summary. Mr. Rados advanced six remaining areas on which he still sought leave to cross-examine. I ruled that four of these six areas did not meet the threshold tests, namely, “some basis” or “reasonable likelihood” of assisting, for permitting cross-examination on a s. 8 review, as set out in R.v. Garofoli, supra at paras. 111-113 and in R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at paras. 33-40 (S.C.C.). For example, counsel sought leave to cross-examine the Affiant on his general understanding of the duty to make full, fair, and frank disclosure in an ex parte Information, on his general understanding of proper protocols for handling confidential informants, and on his interactions with the particular informant in this case. These areas all struck me as being in the nature of a general discovery that could apply in any case involving confidential informants. If allowed, it would effectively convert the leave requirement in Garofoli and Pires into cross-examination as of right in any such case. Counsel also pointed to two brief sentences in the Information, where the Affiant had used awkward language or had expressed an unwarranted conclusory opinion, and sought leave to cross-examine on them. I advised that I would simply disregard these two isolated phrases and that, in any event, a s. 8 review of a search warrant required analysis “as a whole in a common-sense manner” and not “line-by-line word-by-word dissection of the document”, as the Court put it in R. v. Chan and Lam (1998), 1998 5765 (ON CA), 40 W.C.B. (2d) 143 at para. 4 (Ont. C.A.).
19The remaining two areas on which Mr. Rados sought leave to cross-examine were of a different order. Two paragraphs in the Information, that dealt with whether the confidential informant did/did not have a criminal record and whether he/she had a past record of reliability as an informant, were arguably unclear or, at least, could contain material omissions. These were important parts of the Information and I was of the view that cross-examination would assist by clearing up or explaining or not explaining any potential ambiguities or omissions. However, both areas of cross-examination involved risks concerning informant privilege. As a means of controlling these risks, I suggested to the Crown that an addition to the judicial summary could be used as a means of clarifying any ambiguity concerning the informant’s past reliability and that a brief sworn Affidavit from D.C. Ceresoli could answer the two questions I would have allowed concerning the criminal records check. See R. v. Pires and Lising, supra at para. 36, where the Court discussed the risks associated with allowing cross-examination in areas that might infringe on informant privilege.
20Mr. Lissaman, counsel for the Crown, conferred with D.C. Ceresoli and acceded to both suggestions. The judicial summary was amended to clarify any possible ambiguity concerning the informer’s past reliability and a short Affidavit was provided by D.C. Ceresoli answering counsel’s two questions about the criminal records check carried out by the Affiant. As a result of these developments, Mr. Rados conceded that no further cross-examination was required on the two points on which I would have granted leave.
21At this point, the Crown briefly called D.C. Ceresoli to testify in response on the s. 8 Motion. The officer explained why he had drafted the paragraph concerning the criminal records check in the way that he did. Mr. Rados briefly cross-examined on this explanation. I will discuss this evidence in further detail below.
22At this point the evidence concluded, both on the trial and on the s. 8 Motion. I then heard final submissions, solely on the s. 8 Motion, given that counsel were agreed as to the merits of the case and given that the merits of the case were obvious.
D. THE SUBSTANCE OF THE S. 8 CHARTER MOTION
(i) Facts relevant to the s. 8 Motion
23D.C. Ceresoli has fifteen years’ experience with the Toronto police and is assigned to the Guns and Gangs Task Force. In particular, he has experience in drafting search warrants. He struck me as a serious, conscientious, and sincere officer.
24The core of the search warrant Information sworn by D.C. Ceresoli on March 3, 2012 is found at pp. 4-5 where he set out the substance of what he learned from meeting with a confidential informant. In its edited and disclosed form, this part of the Information reads as follows (I have inserted the judicial summary, between square brackets, into the edited portions of the Information):
On [the month and day] 2012 at approximately [the time] pm, I had the opportunity to speak with a Confidential Source who advised me of the following:
The Confidential Source advised that he/she has known GREAVES for over [the number of] years.
[The time frame that the source has known the accused to be involved in criminal activity and an explanation of the means by which the source acquired this knowledge].
GREAVES lives at 627 The West Mall #1709 [details regarding who else lives in this apartment with the accused].
GREAVES’ apartment is a 3 bedroom apartment. It is located on the 17th floor. The Confidential Source advises that you get off the elevator, turn left and it is the second last apartment on the left.
GREAVES is described as male, light skin black, 21 years of age, 5”6, skinny build, afro, slight beard [one further detail as to the source’s belief regarding the accused’s personal information and background].
GREAVES looks like a kid and is always wearing track pants and a hat.
[The most recent date upon which the source identified apartment 1709, 627 The West Mall as a place from which the accused engaged in criminal activity and the means by which the source obtained his or her knowledge].
[The location and manner of storage of a firearm in the possession of the accused
inside the apartment is outlined in these two bullet points together with the meansby which the source obtained his or her knowledge].
[Characteristics of the firearm are described in this bullet point together with the means by which the source obtained his or her knowledge].
[Further information that shows the means by which the source obtained his or her knowledge that the accused has access to firearms].
The Confidential Source advised that GREAVES [further information showing the means by which the source obtained knowledge that the accused has access to firearms] has access to firearms.
[Further information as to the location of the firearm inside the apartment].
The Confidential Source advised that GREAVES also has access to a vehicle. [Details regarding the vehicle that the acused has access to]. The Confidential Source does not know whether GREAVES owns the vehicle or just uses it.
I showed a photo of GREAVES to the Confidential Source. The Confidential Source positively identified the person in the photo as Aaron GREAVES, the person in possession of the firearm.
25In terms of the confidential informant’s credibility, D.C. Ceresoli disclosed two important facts in the Information at pp. 6-7. They were edited out and then described as follows in the judicial summary:
Page 6, paragraph 1 indicates the source’s motivation for providing this information, indicating some self-interest.
Page 7, the first paragraph at the top of the page states that the police have not confirmed, after making inquiries, whether the source has provided reliable information in the past.
Given the above judicial summary, Mr. Rados was able to make submissions to the effect that the informant was untested or unproven and that he/she was motivated by self-interest.
26The one part of the Information that was poorly drafted also related to the confidential informant’s credibility. D.C. Ceresoli cautioned the informant as to the criminal consequences of lying to the police. He then carried out a criminal records check on the informant and disclosed the results at p. 6 of the Information in the following terms:
The Confidential Source has never been convicted of any offences relating to lying to the police like obstruct.
27This kind of limited disclosure of the results of a criminal records check concerning an informant, in a search warrant Information, was criticized by the Court in R. v. Rocha (2012), 2012 ONCA 707, 292 C.C.C. (3d) 325 at paras. 6, 8, and 33 (Ont. C.A.). It is neither false nor misleading, as far as it goes, but it does contain an obvious material omission, namely, whether the records check revealed criminal convictions for offences other than obstruct, perjury or public mischief. As noted previously, I would have allowed two narrowly framed questions on this point, in cross-examination of the Affiant, without disclosing whether the informer did/did not have a criminal record and, if so, what convictions were included in any criminal record. D.C. Ceresoli’s supplementary Affidavit answered the two questions by swearing that he did complete a criminal records check on the informant and that the “reason why I did not attach the results of this criminal records check (whether a record was in existence or not) was to protect the identity of the source”.
28The Crown then called D.C. Ceresoli to explain that he had always followed the practice of not including an informant’s criminal record in search warrant Informations, in order to protect the informer’s identity, but that he had recently changed this practice and now includes the full criminal record. He changed his practice because he believed that the law had evolved to the point where this greater degree of disclosure was required. In this regard, I note that the decision in R. v. Rocha, supra was released on October 24, 2012, some seven and a half months after D.C. Ceresoli applied for the search warrant in this case. As noted previously, I was satisfied with D.C. Ceresoli’s honesty and integrity and this was the only poorly drafted passage in his Information. Nevertheless, his prior practice of not disclosing the full results of the criminal records check to the Justice of the Peace was unreasonable, in my view. As a result, when the Crown provided me with a further Affidavit from D.C. Ceresoli, that set out the results of the criminal records check, and asked that it be made a sealed exhibit on the s. 8 Motion and that it “amplify” the record, I declined the Crown’s request. The doctrine of “amplification” does not apply to unreasonable material omissions, in my view. See: R. v. Araujo et al (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at paras. 55-61 (S.C.C.); R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273 at para. 41 (S.C.C); R. v. Li (2013), 2013 ONCA 81, 296 C.C.C. (3d) 408 at para. 97 (Ont. C.A.).
29The last piece of information, relevant to the informer’s credibility, was found in a sentence at p. 8 of the Information that was edited. The judicial summary of this sentence was as follows:
The first sentence of the first paragraph outlines information about the Source’s involvement in criminal activity.
D.C. Ceresoli’s disclosure that the source was “involved in criminal activity” somewhat compensated for his non-disclosure of any criminal record. In addition, there were other parts of the Information from which the Justice of the Peace would have inferred that the informer was part of a criminal sub-culture. As a result, I was satisfied that the omission of the full results of the criminal records check did not materially mislead the Justice of the Peace.
30In terms of corroboration of the informer’s tip, at p. 9 of the Information D.C. Ceresoli set out his belief that the investigation had corroborated five different aspects of the tip. Two of these aspects were disclosed without editing and the other three aspects were described in the judicial summary, as follows (once again, I have inserted the judicial summary of the edited parts of the Information in square brackets):
The following information has been corroborated:
The Confidential Source knows the target by name.
Greaves’ description provided to me by the Confidential Source.
[These two bullet points refer to the source’s knowledge of the
accused’s living arrangements].
[This last bullet point refers to the source’s knowledge of the accused’s access to a vehicle].
31The investigative steps taken by the police, which produced the above corroboration of the tip, were set out by D.C. Ceresoli in the Information. These investigative steps can be summarized as follows:
On March 3, 2012, the police attended at the address provided by the informer. They interviewed security staff at the building and learned that the apartment referred to by the informer was registered to a person named Denise Pivott;
The police also learned from the security staff on March 3, 2012 that there were three phone numbers on file for the apartment referred to by the informer;
The police conducted a check of their own records and learned that Greaves had been investigated some ten months earlier, on May 6, 2011, and had provided the police with the same phone number as one of the three above-referenced phone numbers currently found on file for the apartment referred to by the informer. Greaves also provided the police with that apartment as his address, namely, 627 The West Mall, No. 1709, when he was investigated on May 6, 2011;
The description of Greaves set out in the police records from the May 6, 2011 investigation was that he was “male, brown, black short hair, 5’6”, 140 lbs.” According to the date of birth that Greaves provided to the police, he would have been twenty years old at the time of the March 3, 2012 search of his premises;
The police found one further reference to Greaves in their records, in a traffic stop report from December 26, 2010. This was some fourteen months prior to the March 3, 2012 search of his premises. Greaves was a passenger in a black 2000 Chevrolet Malibu registered to a person named Nicholas Pivott-Dyer whose address was the same apartment referred to by the informer. Pivott-Dyer would have been twenty-three years old at the time of the March 3, 2012 search. The police also had a record of an Adrian Pivott, based on a motor vehicle stop on October 22, 2011, who also provided the same apartment referred to by the informer as his address. Adrian Pivott would have been twenty years old at the time of the March 3, 2012 search of the apartment.
32In summary, the police investigation confirmed that Greaves probably lived at the apartment described by the informant, that three persons named Pivott or Pivott-Dyer probably lived there with him (one was the female registered occupant and the other two were young males), that one of the young males owned a black Chevrolet Malibu that Greaves had been associated with, and that Greaves’ age and description generally matched the age and description provided by the informer (in particular, his small 5’6” stature). The investigation also revealed that Greaves had no criminal record, no firearms license, and no firearm registered to his address.
(ii) Law and analysis applicable to the s. 8 Motion
33The four main criteria for evaluating a tip from a confidential informer, when determining whether a police officer’s grounds to search or arrest rise to the constitutional and statutory level of “reasonable and probable grounds”, were authoritatively described by Martin J.A. in R. v. DeBot, supra at 219, in the following terms:
Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour 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. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.
Martin J.A.’s “totality of the circumstances” approach to this issue has repeatedly been followed by the Supreme Court of Canada. See: R. v. DeBot, supra; R. v. Greffe (1990), 1990 143 (SCC), 55 C.C.C. (3d) 161 (S.C.C.); R. v. Garofoli, supra at paras 61-9.
34The four relevant criteria set out by Martin J.A. in DeBot – detail, means of knowledge, past reliability, and investigative corroboration – were adopted on the further appeal but were reorganized as three more general criteria, in the judgment of Wilson J. in R. v. DeBot, supra at 216, as follows:
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.
35It appears from Wilson J.’s reasons in DeBot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation.
36Applying the above principles to the case at bar, I am satisfied that the informer’s tip was “compelling” and that there was some “corroboration” that emerged from the police investigation. On the other hand, there were weaknesses in the informer’s “credibility”.
37Beginning with the informer’s “credibility”, it was frankly disclosed that he/she had no past history of providing reliable information to the police. This factor, standing alone, is not fatal. There are well-known and authoritative cases where completely anonymous tipsters simply call “Crime Stoppers”, without any past record of reliably informing, and where their tips have nevertheless been found “compelling”. These anonymous but “compelling” tips, supported by some corroboration, have also been held to constitute “reasonable and probable grounds”. See: R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 at 215-217 (S.C.C.); R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.). In other words, weaknesses in the “credibility” of the tip, due to a lack of any proven track record, can be overcome by strengths in the other two criteria.
38The informer’s “credibility” in the present case was further weakened by his/her admittedly self-interested motivation and by his/her criminal lifestyle. Once again, these are not uncommon attributes of confidential informers and they too are not fatal, standing alone.
39For the above reasons, the informer’s tip was weak, in terms of the “credibility” criterion, and could only rise to the level of reasonable and probable grounds if it was “compelling” and if there was some “corroboration”, as those terms are understood in the case law.
40In terms of analyzing whether the informer’s tip was “compelling”, Mr. Rados correctly conceded that a detailed tip, based on first hand observations that are reasonably current, has generally been regarded as “compelling” in the case law. On the other hand, a vague or conclusory tip, based on second hand hearsay that is not reasonably current, would obviously not be “compelling”. As Rosenberg J.A. put it in R. v. Rocha, supra at para. 28
Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent’s brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip: R. v. Debot, at 1168-69.
Similarly, in R. v. Kesselring, supra at paras. 9-11, the Court found the informer’s tip to be “compelling” on the following facts:
In our case, the informant provided considerable detail about the appellant and the nature of the marijuana growing operation that he said was taking place in the appellant’s house. The information included the names of the occupants of the house, a physical description of the appellant, a description of the house, its approximate location, the appellant’s occupation and detailed information regarding the hydroponic marijuana growing operation, which was consistent with the informant having been in the house and having observed the operation.
Also see R. v. Hosie (1996), 1996 450 (ON CA), 107 C.C.C. (3d) 385 at 392 (Ont. C.A.), which is a good example of a tip that was not “compelling” because “the information supplied is far from detailed …There is no indication as to the informer’s source of knowledge or how current the information is. There is no way to know whether the informer has obtained this information through personal observation as opposed to rumour or second or third hand information”.
41In the case at bar, the record disclosed the following in relation to whether the informer’s tip was detailed, current, and based on mere hearsay or on first hand observations:
The meeting between D.C. Ceresoli and the informer took place in 2012, that is, within two months, at most, of the date of the search. The exact date of the meeting and the “most recent date upon which the source identified [the apartment] as a place from which the accused engaged in criminal activity” were both set out in the Information provided to the Justice of the Peace. As a result, the currency (or lack of currency) of the information was apparent;
The Information repeatedly disclosed “the means by which the source obtained his or her knowledge”. As a result, any second hand hearsay or rumour, if it existed, could easily be discounted or completely disregarded;
It is apparent from the edited disclosed Information, as supplemented by the judicial summary, that the informer’s tip was detailed.
42I am therefore satisfied that there was a strong basis upon which the Justice of the Peace could find that the informer’s tip in this case was “compelling”.
43Turning to the final criterion, namely, investigative “corroboration”, I have already summarized the extent of the corroboration above and will not repeat it. The police independently established Greaves’ age and description, his likely residence, the other people that he likely lived with, and the car that he likely had access to. All of these facts corroborated the informer’s tip. In addition, there was no investigative information that contradicted the informer’s tip. It is clear that the police never corroborated the informer’s core assertion concerning criminal conduct, namely, that Greaves was in possession of a firearm in the apartment. However, the law of search and seizure has never required this degree of corroboration which, if it existed, would render the informer completely unnecessary. As Rosenberg J.A. put it in R. v. Rocha, supra at paras. 22-25.
The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451 the Supreme Court of Canada said the following:
The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.
In the Alberta Court of Appeal, the majority described the independent confirmation as: “the police independently confirmed a number of details, including the identity of the respondent and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle”: R. v. Caissey, 2007 ABCA 380 at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant’s apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.
In this case, the police had confirmed the address and layout of the interior of the restaurant and the involvement of the respondent and his brother in the restaurant. While not as compelling as the independent confirmation in Caissey, this information could not be disregarded.
Considering the totality of circumstances and particularly the compelling nature of the informer’s tip, the ITO concerning the restaurant was sufficient.
44The kind of investigative corroboration that existed in the Caissey case, referred to above in Rocha, was very similar to the investigative corroboration in the present case. In R. v. Caissey (2007
