R. v. Inglis, 2015 ONSC 114

R. v. Inglis, 2015 ONSC 114

COURT FILE NO.: 13566/14

DATE: 20150107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Nigel Inglis

Applicant

F. Richard Connolly, for the Crown

Stacey A. Taraniuk, for the Applicant

HEARD: December 8 and 9, 2014

REASONS

EDWARDS J.

1The applicant seeks an Order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (“The Charter”) excluding from evidence a firearm, ammunition and other items seized by the police after searching his home pursuant to a Warrant to Search. The application was heard by me on December 8 and 9, 2014 and dismissed with Reasons to follow. These are my Reasons.

OVERVIEW

2The firearm and other items were seized by the police after searching the applicant’s family home located at 2372 Annan Woods Drive in Pickering, Ontario (the applicant’s home). The firearm which was discovered by the police during the search of the applicant’s home was a loaded Colt 357 Magnum revolver which is a prohibited weapon and for which it is alleged that the applicant did not hold any authorization or licence for lawful possession. The firearm was located in a shoebox in the basement of the applicant’s home.

3This application was heard by me pursuant to the provisions of section 551-1 (1) of the Criminal Code as a result of my appointment by the Regional Senior Justice to act as the case management judge for the purposes of presiding over this Garofoli application. At the commencement of the hearing of this application both counsel indicated that they would be bound by my reasons.

THE FACTS

4On November 19^th, 2012 Detective Constable McBride of the Guns and Gangs Taskforce of the Toronto Police Service swore an information to obtain (“The ITO”) a search warrant of the applicant’s residence listing as the items to be searched for, the following:

(a) identification for Nigel Hugh Inglis with a date of birth of March 20, 1992;

(b) identification for additional occupants;

(c) rental or lease or ownership documents for 2372 Annan Woods Drive, Pickering Ontario,

(d) firearm(s); and

(e) ammunition

5The ITO sworn by Detective Constable McBride indicated that he had received information from another police officer with the Guns and Gangs Taskforce of the Toronto Police Service as well as information from a confidential informer (“The CI”).

6The ITO that was initially before me included a heavily redacted version of the information supplied by the CI that formed a significant basis on which the search warrant was issued by Justice of the Peace Lau. The redacted ITO provided the following information:

(a) That a male person was resident at the applicant’s home and was approximately an 18 year old male standing six feet to six feet, one inch with a tan or brown complexion and possibly Spanish heritage.

(b) That the individual was described as having a skinny to medium build with black hair; and

(c) That the CI has been told and had acknowledged that the CI would face criminal charges for making false reports to the police regarding information of past, present or future investigations.

7Detective Constable McBride began an investigation to determine if there was evidence or information that corroborated the information provided by the CI which would enhance the reliability of the CI and the information provided. Detective McBride made use of various databases available to the Toronto Police Service which provided further information detailed in the ITO as follows:

(a) A male approximately 18 years of age was living at the applicant’s residence in Pickering, Ontario.

(b) A traffic-related investigation reflected in a record dated October 25, 2011 confirmed that the applicant, Nigel Hugh Inglis, had a date of birth of March 29^th, 1992 and that he was described as a male with brown skin, black straight short hair and was residing at the applicant’s home.

(c) A review of the applicant’s criminal record check revealed that on June 23, 2008 the applicant was convicted of the offences of robbery with violence and break and enter with intent.

(d) An M.T.O. database check revealed that the applicant held a G2 driver’s licence and the address of the applicant provided on the driver’s licence was the applicant’s home address.

(e) A query of the CFRO database search by the applicant’s name and date of birth as well as his residential address revealed that the applicant did not have any lawful firearm registered to him or to the address at the applicant’s home.

(f) During the course of Detective Constable McBride’s investigation on November 19, 2012, members of the Guns and Gang Unit conducted surveillance on the applicant’s home and at approximately 1:30 p.m. a member of the surveillance team advised Detective Constable McBride that the applicant, whose photograph the police had from a database, was observed at the applicant’s home talking on his cell phone.

8Detective Constable McBride in the ITO based his reasonable grounds for his belief that an offence had been and was being committed on the following:

(a) The applicant’s criminal history which included a conviction for robbery with violence as well as break and enter with intent;

(b) The belief that it is more likely that a person prepared to engage in robbery with violence is more likely than an individual without such a record to be in possession of an illegal handgun;

(c) The description of the applicant by the CI matched very closely the known description of the applicant from other sources;

(d) Independent records which verified the applicant’s residential address was the same as that provided by the CI

9Detective Constable McBride outlined in the ITO his grounds to believe the items sought to be seized would afford evidence of the unlawful possession of a firearm as follows:

(a) Identification documents could afford evidence connecting the applicant to the place to be searched and based on his experience that illicit weapons and narcotics are often hidden in a residence and that such documents can help to establish knowledge and control over the place to be searched;

(b) Such documents for other occupants can serve the same purpose;

(c) Rental and lease documents in the name of the accused or other occupants could afford evidence of who has knowledge of or control of the place to be searched;

(d) The presence of a firearm and ammunition would afford evidence and reasonable grounds to believe that the firearms offence had been committed.

10Detective McBride set forth the basis that the items to be searched for would be found in the applicant’s home as follows:

(a) The CI’s information and all other sources of information pointed to the applicant’s home as his residence and no other place;

(b) Based on Detective Constable McBride’s experience and given the applicant’s prior conviction for a crime of violence for monetary gain it was highly likely that the applicant would maintain control over a firearm whether outside or inside his residence and that it was unlikely that he would give up possession or control of such firearm.

THE REDACTED ITO AND THE “STEP 6” JUDICIAL SUMMARY OF THE REDACTED ITO

11The Crown initially took the position that the ITO in its’ redacted form provided a sufficient basis upon which this court should deny the relief sought by the applicant. Counsel for the applicant, quite rightly in my view, took the position that the redacted ITO insofar as it disclosed any information from the CI only provided information concerning a physical description of the applicant, his address together with corroborative information revealing the applicant’s criminal record. Counsel for the applicant took the position that there was nothing in the ITO in its’ redacted form that could link the presence of a firearm in the applicant’s residence to the applicant. Crown counsel argued that paragraph 12(b) of the ITO provided the necessary link between the applicant’s residence and reasonable grounds to believe the applicant would have the care and control of a firearm. Paragraph 12(b) of the ITO provided as follows:

The information uncovered by my investigation also revealed the propensity of Nigel Hugh Inglis (1992.03.20) to be involved with violent crime for monetary gain. That being said Nigel Hugh Inglis has been identified as currently being in possession of a firearm. That firearm without question will remain in the complete control of Nigel Hugh Inglis while inside or outside of his residence. If one is to decide to arm themselves with a firearm for their own safety it would make no sense for that individual not to maintain possession of that weapon. (Emphasis added)

12There was nothing in the redacted ITO that in fact did identify the applicant as being currently in possession of a firearm. By inference it could be suggested that the information contained in the unredacted portion of the ITO could justify that statement but in its’ redacted form that information was not available. I therefore ruled that on the basis of the redacted ITO I could not sustain the initial position of the Crown. The Crown therefore then brought an application pursuant to “Step 6” of R. v. Garofoli 1990 52 (SCC), [1990] 2 SCR 1421 at page 1461 to have the court consider the information in the original unredacted ITO In accordance with the procedure for a “Step 6” application, with the assistance of the Crown, the court ultimately provided to defence counsel a judicial summary of the redacted information in the original ITO The purpose of this summary was to provide to the applicant as much information as possible as to the nature of the redacted materials so as to permit the applicant to have as much meaningful participation in the process while at the same time maintaining the secrecy of the identity of the CI.

13With the production of the judicial summary of the redacted information I advised defence counsel that the draft prepared by Crown counsel and approved by me followed the format suggested by K.L. Campbell J. in R. v. Boussoulas 2014 ONSC 5542, 2014 O.J. No.4525 at paragraph 66. I also pointed out to defence counsel the comments of K.L. Campbell J. at paragraph 68 and 69 were particularly important in the consideration of whether or not the judicial summary met the requirements of the Garofoli “Step 6” procedure, specifically the comments of K.L. Campbell J. as follows:

…In the context of a judicial summary provided as part of a Garofoli “Step 6” procedure, defence counsel is simply not entitled to, and must not be provided with, detailed information from the redacted portions of the ITO that may compromise the anonymity of a confidential informant. Rather defence counsel is only entitled to be made “sufficiently aware of the nature of the excised material” so as to be able to “challenge it in argument or by evidence”. This may require counsel to consider, with greater imagination, the potential factual scenarios left open by a more general factual background in an effort to ensure that the judge considers any potential complaints about the ITO that defence counsel may raise from this more limited base of information…

POSITION OF THE APPLICANT

14The primary position of the applicant is that there was nothing in the ITO in its redacted form that could link the presence of the firearm in the applicant’s residence to the applicant. As I have already indicated I agreed with this position and, therefore, at the request of the Crown moved to an application pursuant to “Step 6” of Garofoli. With the production of the judicial summary of the redacted information there was little further argument made by counsel for the applicant concerning this section 8 application to exclude from evidence the firearm, ammunition, various drugs and identification belonging to the applicant. Nonetheless, I intend to proceed with an analysis as to whether or not the authorizing justice could have granted the search warrant in question.

POSITION OF THE RESPONDENT

15Counsel for the respondent argues that the search warrant was properly issued and that it was based on reasonable and probable grounds. Furthermore, it is argued that the ITO was not only accurate but it also provided full, fair and frank disclosure to the issuing justice. In its unredacted form, it is suggested by counsel for the Crown, that the ITO was sufficient to allow the Justice of the Peace to have issued the warrant to search.

ANALYSIS

16I begin my analysis with the standard of review which applies in this Garofoli-type application. The standard of review is clear. It is not a question of whether or not sitting in my capacity as a reviewing judge I would substitute my own view for that of the authorizing judge. Rather, the standard of review is whether as a reviewing judge I conclude that the authorizing judge “could” have granted the authorization. If I come to the conclusion that the authorizing justice could have issued the authorization then I must not interfere. The test on review, therefore, is not whether the reviewing judge would have issued the search warrant, but rather whether there was sufficient information that could have permitted the authorizing justice to conclude that there were “reasonable grounds” that would justify the issuance of the search warrant. See R. v. Garofoli at page 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para 1936 and 1940; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para 39 to 43.

17A review of the ITO in question makes it quite clear that the bulk of the information relied upon by Detective Constable McBride came from the CI. In assessing whether the ITO reveals the necessary “reasonable grounds” where the ITO is largely based on information from a CI, consideration must be given to whether the information from the informer is compelling, credible and or corroborated by other aspects of the police investigation, see R. v. Debot, (1986) 1986 113 (ON CA), 30 CCC (3d) 207 at pages 218 to 219.

18In assessing the sufficiency of the information which is contained in the ITO where the information largely comes from a CI the courts, as previously noted, have required that the information provided be both compelling and credible. It also must be corroborated by the police before it properly becomes grounds to issue a judicial authorization. In dealing with whether or not the information was compelling and credible and whether it was corroborated by the police, the ITO details the investigation conducted by McBride which included cross-checking the information provided by the CI to a variety of Toronto Police Service databases. Those databases confirmed that a person of the approximate age of the applicant with the same date of birth with brown skin was residing at 2372 Annan Woods Drive. As well, the police databases confirmed that the applicant had a prior criminal record for the offence of Robbery with Violence and Break and Enter with Intent. A Ministry of Transportation database check revealed that the applicant held a driver’s licence and resided at 2372 Annan Woods Drive in Pickering, Ontario. Finally, a review of the CFRO Database conducted in the name of the applicant and his date of birth revealed that he did not have a lawful firearm registered to him or to the address of 2372 Annan Woods Drive, Pickering, Ontario.

19In addition to the review of the various police databases McBride relied on surveillance information supplied to him by a Detective Lopes who confirmed from his observations, using a photograph provided to him of the applicant, that the applicant was observed at 2372 Annan Woods Drive.

20The basis for McBride’s reasonable grounds for his belief that an offence had been, and was being committed was based on the applicant’s criminal history which included a conviction for Robbery with Violence; that the description of the applicant matched the description provided by the CI, and that independent records verified the applicant’s residential addresses which had been provided by the CI. McBride further based his reasonable grounds on his belief that it was more likely that a person prepared to engage in robbery with violence was more likely than an individual without such a record to be in possession of an illegal handgun.

21As to McBride’s grounds for belief that the items sought to be seized, McBride relied on the following grounds; that identification documents would afford evidence which would connect the applicant to the place to be searched, as well as establishing knowledge and control over the place to be searched; the presence of a firearm and ammunition would afford evidence and reasonable grounds to believe that the firearms offence had been committed.

22Finally, as to the basis for McBride’s belief that the items were at the place to be searched, McBride relied upon the information supplied by the CI, and his own view based on his experience that given the applicant’s prior conviction for a crime of violence and monetary gain, that it was more likely than not that the applicant would maintain control over the firearm whether inside or outside his residence and that he would be unlikely to give up possession or control of that weapon.

23There was no suggestion made during the course of argument that anything contained in the ITO was factually inaccurate. In essence, the sum of the argument made by counsel for the applicant was that it was impossible to assess the validity of the search warrant on the basis of the redacted format that had been provided to counsel. The applicant has the burden to establish that the police search was conducted in violation of his right to be secure against unreasonable search and seizure contrary to section 8 of the Charter, and that the evidence seized as a result of the search should be excluded under section 24(2) of the Charter, see R. v. Sadikov, 2014 ONCA 72 at paragraphs 35 and 83. I am not satisfied that the applicant in this case has remotely come anywhere close to satisfying this burden. I did agree with counsel for the applicant that there was nothing in the ITO in its redacted form that could link the presence of a firearm in the applicant’s residence to the applicant. With the judicial summary of the redacted ITO, I am more than satisfied that in fact the information relied upon by the issuing justice established that there was compelling and credible information that was corroborated by the investigating police officers to establish the sufficiency of the link to the items seized in the applicant’s residence. I am, therefore, more than satisfied that based on the record before the issuing justice that there was sufficient information that allowed the authorizing justice to conclude that there were reasonable grounds to justify the issuance of the search warrant. In short, I am satisfied that the information provided by the CI was compelling; that there was no reason to doubt that the CI was credible particularly given that the CI had been warned of the consequences of falsifying information, and I am equally satisfied that the information provided by the CI was corroborated by the police investigation, which included accessing various databases and the surveillance conducted at the applicant’s residence. For these reasons the application is denied.

The Honourable Mr. Justice M.L. Edwards