ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3819/11
DATE: 2014-12-22
B E T W E E N:
Her Majesty the Queen
Darren Anger, for the Federal Crown
- and -
Thomas Mcalpin
Michael DelGobbo, Counsel for the Defendant Mr. Mcalpin
Defendant
HEARD: December 8th and 10th, 2014
JUDGMENT
ARRELL, J.
Introduction:
[1] The Applicant seeks an order excluding evidence under S. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the ITO for the search warrant was misleading, inaccurate and omitted relevant information and should therefore be quashed pursuant to S. 8 of the Charter.
Facts:
[2] The Applicant was arrested on March 24, 2010 on a number of charges involving drugs and firearms, following a search of his farm pursuant to a search warrant.
[3] The Niagara Regional Police between September 27th, 2009 and March 23, 2010 received information from four separate confidential informants alleging drug activity at the Applicant’s farm.
[4] Detective Essery swore an ITO in support of a telewarrant application on March 24, 2010. The warrant was issued authorizing entry by force of the Applicant’s home between the hours of 7:00 pm on March 24, 2010 and 4:00 a.m. on March 25, 2010.
[5] The police executed the warrant at 10:23 p.m. on March 24, 2010. As a result of that search 152 marijuana plants were seized, a number of firearms, other drugs and various drug associated items.
[6] The ITO sets out the Affiants six years of experience as a police officer and the various courses and training he had completed.
[7] The Applicant applied to have the Affiant cross-examined on his ITO. This request was granted despite being opposed by the Crown.
[8] The ITO clearly sets out the source of the information leading to the Affiant’s belief that he had reasonable and probable grounds to believe that the Applicant was in possession of the drug hydomorphone and unregistered firearms.
[9] In essence, the main source of the Affiant’s information was the four informants. He was also aware that the Applicant had a criminal record but he did not cite the dates of the convictions. He also did not cite the entire criminal record of the informants to protect their identity, only indicating that they had no convictions for perjury or public mischief.
[10] The past reliability of the informants is stated. The information they had implicating the Applicant is also set out in the redacted version of the ITO before me.
Position of the Applicant:
[11] The applicant takes issue with the ITO for a number of reasons. The main objections are the omitting of certain facts such as the full criminal records of the informants and the dates of charges regarding the Applicant; the sources of how the informants acquired their information; the lack of inquiry to see if the Applicant had a marijuana license; the lack of police surveillance and the lack of corroboration.
The Law:
[12] A search conducted pursuant to a judicially authorized warrant, which is issued on the basis of information provided under oath, is presumed to be valid and reasonable. As such the evidentiary and persuasive burden lies with the party seeking to attach the sufficiency of the warrant. R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) at 14.
[13] The onus is on the Applicant, on a balance of probabilities, to persuade me that the issuing justice of the peace could not have issued the warrant based on the record before him.
R. v. Garofoli (1990), 60 c.c.c (3d) 161 (S.C.C.)
R. v. Campbell, 2010 ONCA 588, [2010] O.J. No.3767 (OCA)
[14] As was stated by Sopinka J. in Garofoli, supra at page 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[15] Quite simply a reviewing judge must not set aside the authorization unless he or she is satisfied on the whole of the material presented that there was no basis for it. R. v. Garofoli, supra.
[16] The standard for the test as to “reasonable grounds to believe” appears to be relatively low.
“…something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities…”
Mugesera v. Canada 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 144.
[17] In R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 at 367 Hill J. summarized the standard as follows:
“The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted”.
[18] R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 is instructive when considering “tips” from confidential informants as the basis of the officer’s reasonable and probable grounds. The Court indicated the following three factors must be addressed:
Was the information predicting the commission of an offence compelling;
Was the tip credible;
Was the tip corroborated?
[19] The Court went on to say each factor is not a separate test but rather it is the “totality of the circumstances” that must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two.
Analysis:
[20] The ITO indicates that informant number 1 provided information to an officer other than the Affiant. He was well known by police to be involved in the drug trade. He had never been used as an informant before so his reliability was untested. His evidence was specific that drugs were being sold from the residence of the Applicant and he knew the address. He described the types of drugs being sold. He described a large grow operation on the property. He stated that Andrew Scott attended the residence to assist in the sale and distribution of drugs.
[21] Informant number 2 gave information to a different police officer. This informant was well known to that officer as someone who had intimate knowledge of the area drug trade. He had been used in the past to obtain search warrants and he had always been reliable. He confirmed the name and address of the Applicant and also gave a physical description of the property. He also named Andrew Scott as attending the property to assist in the sale of drugs and prescription medication.
[22] The police checked the records of both informants, and as was the custom in 2010 did not attach those records to the application but did indicate there were no convictions for perjury or mischief. The records were also not attached to protect the identity of the informants.
[23] Andrew Scott was well known to the Affiant as someone heavily involved in the area drug trade. His record was checked and accurately described as confirming an extensive criminal record for a number of drug offences including trafficking and one firearm conviction.
[24] These two informants gave information at different times to different officers confirming each other in all relevant areas. Their information is specific and consistent. Informant number 2 is reliable and there was no evidence to doubt the reliability of informant number 1 as he had not been used before. Both informants were known to be intimately involved in the Niagara drug culture
[25] On cross-examination the Affiant indicated that the two informants’ source of information was not mere gossip or speculation. He also confirmed that they each had a conviction for a crime that could be considered a crime of dishonesty. Specifics of the informants’ criminal record and exact source of their information were either not put in the ITO, or redacted, in order to protect their identity in the relatively small drug community of Niagara.
[26] I conclude that there is no reason why the issuing justice would not accept the information from these two informants as reliable, credible and compelling. They corroborate each other as does the evidence regarding Scott as a known drug dealer, with a lengthy record, who assists the Applicant in the sale of various drugs from this specific address which they know the Applicant owns.
[27] Informant number 3 is well known to the Affiant as someone with intimate information regarding the drug culture in Niagara and has proven to be a reliable source of information in the past. This informant’s motivation is to eradicate the drug trade. He states that John Widema attends the Applicant’s residence to purchase prescription medication. He was specific as to the residence and that the Applicant owned it, resided there and sold drugs from that location.
[28] The officer also spoke to informant number 4 who was likewise very well known to him in the drug culture. He is a very reliable source of information. He is a paid informant and was indeed paid on this occasion. The Affiant, in cross-examination, indicated that the arrangement is well understood with this paid informant that he would only be paid if the information he supplied was accurate.
[29] This informant was very specific that he advised that on a specific date he attended the residence of John Widema and purchased hydromorphone pills from him. He also indicated that on a specific date John Widema had attended the Applicant’s home and purchased a specific number of hydromorphone pills. He described in exacting detail the Applicant’s property, fencing and indeed the details of the gate latch.
[30] The Affiant confirms that informant 3 and 4 have criminal records but not for perjury or mischief. On cross-examination he confirmed they each had at least one conviction for a crime that may be considered one of dishonesty. He also confirmed that their source of information was not mere gossip or speculation.
[31] The Affiant confirmed in the ITO an extensive drug record for John Widema with charges pending and that he is very well known to the police as being heavily involved in the Niagara drug trade.
[32] I conclude that there is no reason why the issuing justice would not accept the information from these two informants. They are specific and consistent with each other and therefore corroborative. They have proven reliable in the past even though they have criminal records. The information from informant number 4 is very detailed. In my view their information is credible, compelling and they corroborate each other as does the evidence regarding Widema.
[33] I also conclude that informants 1 and 2 corroborate 3 and 4 regarding the Applicant’s address, description of his property and type of drugs available and that two described known drug dealers purchase drugs at this residence from the Applicant.
[34] The Affiant was extensively cross-examined as to why he did not arrange surveillance to corroborate the information of the informants. He testified that he did do a drive by to confirm the address he had been given by the informants; he confirmed the Applicant owned the property; he confirmed the description of the property as given by the informants that it was very rural on a number of acres; surrounded by forest; had a six foot high wood fence with a locked gate; a long driveway off a long straight country road with few neighbouring properties. He, I think quite reasonably, felt that it would have been unsafe and impractical to set up surveillance as the team would likely have been “made” immediately given the isolated location in such a rural setting. Google pictures were made exhibits, on consent, of the area and they confirm the description given by the officer.
[35] The Applicant also complains that the Affiant did not bother to check to see if he had a medical marijuana license. That is true and so admitted. The Affiant indicated on cross-examination he did not think to check for a medical license as he was looking for prescription drugs. I accept that explanation as reasonable. In any event, I conclude that information on whether the Applicant had a medical marijuana license would not have affected the reasonableness of the issuance of this warrant based on the totality of the information available to the issuing justice.
[36] The applicant also alleges the Affiant painted the Applicant in an unreasonably negative way in not setting out that his record was dated and the outcome of the charges. I disagree.
[37] The Affiant quite clearly set out the age of the Applicant, his date of birth, his address, that he was not currently facing any charges but had a criminal record which he lists. He clearly points out in the next paragraph that the previous drug charges relate to a 1999 raid of his current address and sets out the drugs found and that he pled guilty to a reduced charge of possession and received a conditional discharge. In my view these circumstances were fairly and accurately set out for the justice to consider.
[38] The Affiant sets out that in his experience firearms are often in the possession of drug dealers given the violence associated with the drug subculture. He had evidence that Andrew Scott had a prior conviction for a firearm. He swore that he had information from some of the informants that the Applicant was in possession of firearms, although the specifics and from which informant is not visible in the re-dacted version of the ITO before me.
“… a trained officer is entitled to draw inferences and make deductions drawing on experience …a reviewing court must take these factors into account.”
R v. Cunsolo, [2008] O.J. No. 3754 (SCJ) at para. 68(6)
[39] For reasons already stated, I conclude that the information provided by the informants regarding drugs at the Applicant’s home more than met the standard to the issuing justice that there were reasonable and probable grounds to issue the warrant.
[40] Likewise, I conclude there was sufficient information in the ITO based on the officer’s experience, the record of Mr. Andrew, the isolated area, the type of drugs being sold, the known drug dealers purchasing the drugs and the information the Affiant obtained through the informants to justify the issuing of the warrant to search for firearms.
[41] I therefore conclude that the Application to quash the search warrant must be dismissed.
ARRELL, J.
Released: 22nd December, 2014
COURT FILE NO.: 3819/11
DATE: 2014-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Thomas Mcalpin
JUDGMENT
HAS(vt)
Released: 22nd December, 2014