CITATION: R. v. Rugigana, 2015 ONSC 2233
COURT FILE NO.: CR-13-90000087-0000
DATE: 20150410
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Lucas Price, for the Crown
Respondent
- and -
ERIC RUGIGANA
Susan Adams, for the Defendant/Applicant
Defendant/Applicant
HEARD: November 24-28, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Charter s. 8, Garofoli Application
Overview
[1] Eric Rugigana is charged with possession of crack cocaine for the purposes of trafficking and with possession of proceeds of property obtained by the commission of a criminal offence in Canada.
[2] These charges arose out of the execution of a search warrant on October 30, 2011, by members of the Toronto Police Service, at 212 Eglinton Ave. E., Apt. 1903. A confidential informant (“CI”) provided the information that led police to obtain this warrant. In the course of that search, police located $34,820 and 461.3 g (that is, just over a pound) of crack cocaine. The crack cocaine is claimed to have a total street value of some $20,000.
[3] The accused and his girlfriend were both arrested and detained while the apartment was searched. Sometime later, after the accused provided a statement to police pertaining to the possession of the drugs and cash, his girlfriend, Ms. Tran, was not charged with any offences and was released unconditionally.
[4] On this application, the accused challenges whether there were reasonable and probable grounds to obtain that warrant. He argues that the CI’s information was not compelling, credible or corroborated. In particular, he claims an absence of credibility in the CI’s information. Further, he claims that as a result of an alleged lack of care by the affiant in its preparation, the ITO could not have permitted the justice to issue the warrant to enter and search the applicant’s apartment, once the ITO is excised or amplified to deal with those alleged deficiencies.
[5] Consequently, he says that police authorities violated his s. 8 rights under the Canadian Charter of Rights and Freedoms when they searched his residence, because the CI’s information did not disclose reasonable grounds to believe that Mr. Rugigana was in possession of illegal drugs or that such evidence would be found in his home. Consequently, the accused claims that the CDSA search warrant that yielded the drug and currency evidence that is the principal evidential support for these charges was issued illegally.[^1] As such, he asks that it be ruled inadmissible at his trial.
[6] Mr. Rugigana re-elected to be tried by judge alone and it was agreed that my determination on this application would be dispositive of whether the accused is guilty beyond a reasonable doubt of the offences he is charged with. As such, the sufficiency of the warrant must be considered in accordance with the analytical framework and procedure described in the seminal decision in R. v. Garofoli.[^2]
Factual Background
[7] D.C. Askin has been a member of the Toronto Police Service since December 2000. He is currently assigned to the Guns & Gangs Task Force. He has experience in the preparation of ITOs sworn in support of requests to obtain search warrants and has obtained search warrants on prior occasions. He obtained the information contained in the affidavit he swore after meeting with the CI. The CI was known to his colleague, Detective Johnson, but was not known to him personally.
[8] As is frequently the case, the CI supplied the bulk of the information that supported the warrant. That information was used to assert reasonable and probable grounds that evidence of an offence would be found at Mr. Rugigana’s apartment, and thus support the issuance of the warrant. To protect CI privilege, however, the detailed information provided by the CI was extensively redacted before the ITO was disclosed to the defence.
[9] In its redacted form, the ITO discloses that the CI provided the following specific information to the police:
• That the CI was aware of a male who resided at 212 Eglinton Ave. E., Apt. 1903.
• That the CI knew that individual as Eric Rugigana, the defendant in this matter, and had known that individual for some unspecified period of time.
• In addition to providing his address of 212 Eglinton Ave. E., Apt. 1903, the CI provided a relatively detailed description of the defendant’s appearance and age noting that he was a 35-year-old black male, with a muscular thin build, 5’8” to 5’10” tall, and with a shaved head and face.
• The CI advised D.C. Askin that at that time, the defendant was in possession of a large quantity of cocaine and that he was a high-level cocaine dealer involved in the trafficking of large quantities of cocaine.
• The CI advised that he/she had been purchasing cocaine from the defendant for some unspecified period of time.
• The CI advised that he/she knew the defendant to keep large quantities of cocaine on hand for the purposes of distribution to lower-level street dealers and that the defendant traffics cocaine out of the apartment address where he lives.
• The CI told D.C. Askin of detail respecting the appearance of the building where the defendant resided. He/she had knowledge that it was a multilevel apartment building located near the intersection of Eglinton Ave. East and Yonge Street.
• The CI advised the officer with respect to two separate drug-related conversations that he/she engaged in with the accused during the month of October 2011. During those conversations the CI requested to purchase unspecified quantities of crack cocaine from the defendant.
• The CI confirmed that the defendant advised that he had cocaine, and that he later gave quantities of cocaine to the CI.
• The cocaine was contained in clear Ziploc baggies when given to the CI in exchange for a purchase price that consisted of unspecified quantities of currency.
[10] This was not a case, like some other similar Garofoli applications,[^3] where Crown counsel acknowledges that the ITO could not stand and have given rise to the issuance of the warrant in its redacted form. In those cases, the application has immediately proceeded to the step 6 analysis contemplated in Garofoli. In this case, I was ultimately not satisfied that the redacted ITO was adequate, and the step 6 procedure was followed.
The Garofoli Step 2 procedure summarized and applied
[11] Crown counsel took the position that the ITO, in its redacted form, was adequate for the purposes of determining its validity and enabling defence counsel to challenge the warrant. However, even if there was adequate information disclosed on the nature of the CI’s information to permit meaningful debate as to whether the information provided by the CI may have been compelling and corroborated, it seemed clear that there was inadequate information provided in the redacted ITO to permit defence counsel to challenge whether or not the confidential source was credible. As a result, I asked for and was provided with the Crown’s proposed draft judicial summary and the unredacted ITO; I did so prior to making a formal determination that the ITO, as redacted, was inadequate to permit the defence to challenge the CI’s credibility.
[12] While that may have been a procedural error,[^4] and even though Sopinka J. acknowledged in Garofoli that the procedure he described was not intended to be exclusive or exhaustive, it was one that did not excessively concern either counsel as both were prepared to engage in and proceed to the Garofoli Step 6 procedure; in the result, as noted, we would have arrived at the Step 6 analysis in any event due to my concerns about the information provided to the defence with respect to the CI’s credibility. In any event, in light of my conclusion that more fulsome information was required to permit that issue to be explored more fully by counsel for the defence, the voir dire formally proceeded to the second stage of the Garofoli application.
[13] As noted, a draft judicial summary had been previously provided to me for my review. It had been prepared by Crown counsel to disclose the nature of the information set out in the unredacted ITO relative to the CI and the information the CI had provided. Upon my initial review, I had only minor suggestions to make relative to the content of that judicial summary of the ITO.
[14] However, as the application continued and argument developed, and once I had reviewed the entirety of the unredacted ITO itself, it appeared to me that the judicial summary could be amended and expanded in order to provide considerably more clarity to defence counsel relative to the nature of the content of the affidavit, all without disclosing privileged information.
[15] Provided the anonymity of the source is always protected by reasonable and principled redactions, rather than redactions that are all embracing or excessive, an expanded judicial summary permits defence counsel to have a deeper and more meaningful understanding of the true nature, breadth and depth of the information provided by the CI to the affiant. A judicial summary that contains more detail about the nature of the CI’s information expedites the application because it gives the defence a better understanding of the ITO. That better understanding will either serve as a more informed foundation from which to challenge the warrant, or on the other hand, to understand why and whether the justice of the peace could have issued the warrant on the basis of the information described in the redacted ITO, as supplemented by an exposé of the nature of the redacted information from the CI, that is as fulsome as possible.
[16] My view that the draft judicial summary was inadequate is not a criticism of Crown counsel’s natural inclination to err on the side of caution in order to ensure the continuing protection of the privilege. To his credit as the Crown law officer, Mr. Price expressed agreement with the concern I was voicing in the course of submissions. So after providing some direction and comment to Crown counsel about the content of the initial judicial summary, he undertook to review its content and to endeavour to expand upon the information disclosed with a view towards providing defence counsel with the best foundation possible from which to challenge the validity of the warrant, while still protecting confidential informant privilege.
[17] Crown counsel then prepared a revised judicial summary, one which contained significant revisions from its initial form. I was satisfied that there was nothing in those revisions that risked compromising the anonymity of the confidential informant and his or her entitlement to confidential informant privilege. The revised judicial summary contained a more fulsome and informative description of the nature of the information that had been redacted from the ITO. In my view, that more precise description of the nature of the CI’s information met the requirements of a Step 6 procedure while providing defence counsel with the greatest scope possible, within the inherent limits of the Garofoli procedure itself, to challenge the validity of the warrant.
[18] I have described in some detail the evolution that occurred in this case, recognizing that the use of the Step 6 procedure is relatively new, and that, as Code J. noted in R. v. Learning,[^5] judges will continue to develop experience in the preparation of judicial summaries of the information redacted from an ITO. But in doing so, the conundrum of the Garofoli Step 6 process is laid bare, and the “trustee-like” role of the Court becomes emphasized.
[19] After a judicial summary is prepared and the original unredacted ITO is reviewed by the Court, the only people in the room who do not know what precise information was provided by the CI are the defendant and his or her counsel. Defence counsel has none of the detailed CI information because to disclose it would risk compromising confidential informant privilege. Yet with no specific information upon which to challenge the validity of the warrant, the defence is nevertheless expected to be able to do so on the basis of information that is by necessity generic and not descriptive.
[20] An accused has a constitutional right to make full answer and defence. One manifestation of this right is to be provided with the information contained in an ITO so as to challenge the issuance of a search warrant. But under Garofoli Step 6, in determining the adequacy of a judicial summary, the accused can never be objectively satisfied with the answer to that question because he or she has no standard against which to determine the adequacy of the ITO. That necessarily follows from Step 6, because the defence can never know if the judicial summary that has been prepared adequately describes the full nature of the information provided by the CI that is set out in the unredacted ITO. They can never be truly satisfied that the unredacted information was sufficient to authorize the issuance of the warrant.
[21] Consequently, it falls to the Court to fully exercise its oversight role on such an application. At root, the defence is asked to trust that the Court will ensure, to the greatest extent possible and within the parameters of protecting informant privilege, that the defence will be provided with the broadest and most detailed description possible of the nature of the CI’s information.
[22] In doing so, it seems to me that the Court’s role is to facilitate permitting the defence to reach one of two conclusions. The defence may conclude that disclosure in the judicial summary permits the defendant to launch a meaningful challenge of the validity of the warrant. Alternatively, the defence may conclude that the redacted ITO and judicial summaries permit them to come to a better understanding that the information provided in the ITO was indeed adequate to provide a basis upon which the justice of the peace, acting judicially and having regard to the contents of the officer’s affidavit, could have issued that warrant.
[23] In light of the fact that the Step 6 procedure is still developing and that other judges will grapple with these same issues, I have included a table that is set out at Appendix 1 to this ruling. It includes the initial content of the judicial summary in this case and the content of the summary in its subsequently expanded and revised form.
[24] For example, paragraph 1 of the judicial summary previously referred to content of the ITO that contained “details regarding the source’s criminal record including timeframe, number and nature of convictions.” However, the revised judicial summary expanded that description to show that paragraph 1 of the ITO actually told the justice of the peace the name of the municipality in which the CI resides and details regarding the nature of the source’s criminal record including (i) the time frame in which convictions occurred, and that they are dated, (ii) the number of convictions, and (iii) a detailed description of the nature of the offences for which convictions had been registered against the CI.
[25] These may seem inconsequential, but I regard them as important differences. While not providing the detailed information itself, these amendments provide more detail on the nature of the information that was before the issuing justice. Those changes confirm that the convictions are dated, a factor that would have been relevant to the justice in considering the credibility of the source. The detailed description of the nature of the offences would have permitted the justice to determine whether the CI had ever been convicted of crimes of dishonesty, which would or could have more directly affected the justice’s credibility assessment than other types of offences. The statement that the full number of convictions was also set out would also have factored into that credibility assessment. The revised information provides a fuller expose of exactly what was in front of the justice of the peace when he or she considered whether to issue the warrant. Thus, it also provides a better foundation to understand whether he or she could have issued the warrant.
[26] I have included the comparative chart in Appendix 1 in order to permit the two versions to be compared and understood. I do so to demonstrate that it may be possible in any particular case to provide relatively fulsome information about the actual nature of what has been disclosed by a CI without running the risk of compromising confidential informant privilege. Fulsome and detailed disclosure in the judicial summary must be encouraged, since it will better meet the objective of ensuring that defence counsel has the broadest possible understanding of the nature of the information provided by the CI, which in turn will permit them to challenge the legality of the warrant.
The standard of review for the warrant
[27] Two distinct principles control reviews that take place on a Garofoli application. The first is the evidentiary standard applicable to the issuance of a search warrant, and the second is the different standard of review that applies when this court reviews the decision made by the justice of the peace in a particular case to issue a warrant on the basis of the ITO. As a starting point, I note that a search warrant is presumptively valid under s. 487 of the Criminal Code where issued by a justice of the peace following a review of an ITO presented to her that has been sworn or affirmed by a police officer.
[28] Consequently, the burden to show that no reasonable and probable grounds were present to support the issuance of the warrant rests on the accused. Where the accused claims a warrant was illegally obtained in violation of s. 8 Charter rights to be free from unreasonable search and seizure, the Court is called upon to determine whether the pre-conditions set out in s. 487 of the Code for issuance of the warrant were met.[^6]
[29] There are two preliminary questions to be addressed before a search warrant can be issued. The first is whether there are reasonable grounds to believe that an offence is or has taken place. The second is that the affiant has reasonable grounds to believe that evidence of a crime will be found in the place sought to be searched. The language of the Code shows that the standard of proof is a mere “reasonable probability,” and it is neither proof beyond a reasonable doubt nor the existence of a prima facie case on a balance of probabilities.
[30] The evidence must be assessed in its totality, but the assessment by the issuing judge should be based on a practical, commonsense, non-technical reading of the warrant as a whole. In determining whether the standard is met, the question to be answered is whether there is a credibly based probability for the ITO affiant’s belief that a criminal offence is about to occur or has occurred. As the justice considers that question, the whole of the evidence is to be assessed in a balanced manner, and the justice may take account of reasonable inferences that he or she properly draws from the contents of the ITO.
[31] On review of a warrant, I am required to determine whether there was any basis upon which the authorizing justice could have been satisfied that the requirements of s. 487 of the Code were met when he issued this warrant. I have to determine whether he had reliable information before him. However, this review is not a trial where the truth of the allegations in the ITO is explored. Moreover, I am not to substitute my own opinion for those of the issuing justice. Neither am I to prefer one inference that might be drawn in the place of another.
[32] The existence of errors, even material omissions, does not determine the outcome of the review. The critical issue is whether what remains in the ITO is sufficient to meet the test, after any amplification or excision has been performed. So long as there is a basis on the amplified and/or excised evidence upon which the issuing justice, acting judicially, could have granted the search warrant, then the warrant will stand. It will have been properly issued. It will only be quashed if there was no basis upon which the authorizing justice could have been satisfied that those preconditions existed.
Excision and amplification
[33] At the commencement of the application, Crown counsel revealed that several minor errors had been found in particular paragraphs of the ITO. The affiant of the ITO, Detective Constable Askin, noted that certain dates in October 2011 referred to in four paragraphs of the ITO should have referenced the same date as that contained in two other adjacent paragraphs, but were incorrectly recorded. As a result, D.C. Askin was called to give evidence on the voir dire relative to those errors.
[34] He testified that he did not see or catch those errors, notwithstanding that he proofread the ITO before presenting it to the justice of the peace, but he was also insistent that he had no intention to deceive or mislead the justice. No improper motive was attributed to him, but counsel for the defence did argue that those errors display a lack of care for the content of the information presented to the justice of the peace to obtain the warrant that in her view undermines its legal validity. In counsel’s view, the ITO was not prepared with the requisite level of care.
[35] Defence counsel goes further and claims that the reference to the Mannix check, referred to in paragraph 17 on page 12 of the ITO, comes close to evidencing an intention on the part of D.C. Askin to mislead the justice of the peace. I disagree with that characterization by counsel. I do acknowledge that it ought not to have been included in the ITO and its inclusion demonstrates some lack of care and attention to detail, but I do not attribute that to a malevolent intent. Crown counsel agrees that that reference should be excised in its totality.
[36] As for the balance of the complaints of defence counsel relative to the ITO, I note that the law is clear that a level of perfection is not called for in the preparation of the affidavit. This is discussed below in the context of the request for exclusion of the evidence under s. 24(2) of the Charter.
Does the CI’s information meet the test in R. v. Debot?
[37] In deciding there are reasonable and probable grounds for the warrant to issue, the test in R. v. Debot[^7] requires that I be satisfied on a balance of probabilities that the anonymous informant’s information is compelling, credible and corroborated.
[38] Counsel for the defence attacks the sufficiency of the warrant on several grounds:
(i) That there is no evidence in the warrant to suggest that the CI is proven or reliable, apart from his own self-serving statement that he or she is proven and reliable.
(ii) That the CI provided information to the police about particular drug transactions, but police authorities made no meaningful attempt to confirm those transactions, to confirm that similar transactions had happened in the past, or that they were continuing.
(iii) That the police surveillance yielded no material evidence to support the information that had been provided by the CI.
(iv) That the ITO is misleading by failing to allude to that alleged lack of corroboration in the information that was put in front of the justice of the peace to obtain the search warrant for Mr. Rugigana’s apartment.
(v) That the CI provided no more detailed information than the name of the accused, his general description and an address of a building on Eglinton Ave. East where he resided, and no other relevant information that directly focused on him, and no other investigation was done by the police to confirm the information that the CI provided.
[39] In summary, it is claimed that the information provided by the CI was not credible, because little if anything is known about that information, or about him as an informant, or about other relevant factors that inform the credibility of his tip. In addition, it is claimed that no meaningful corroboration was carried out by the police officers, regardless of whether they regarded the information about the applicant as compelling.
[40] Notwithstanding defence counsel’s position with respect to the warrant, it struck me during the earlier phase of this hearing before the Garofoli Step 6 procedure formally commenced that it was open to the justice to regard the information provided by the CI as compelling and to view efforts to verify it as adequate corroboration, even if they did not witness the applicant engaging in a transaction with some other person.
[41] Nevertheless, I would have accepted the defence position that there was insufficient information set out in the redacted ITO as it was provided to the defence counsel to permit the applicant to know the nature of the information relied upon in support of the credibility of the CI, and thus whether that Debot criterion had been met.
[42] I would have reached this conclusion regardless of the fact that the authorities plainly support the proposition that the evidence of the confidential informant is to be looked at in its entirety, and that weakness on one of the three branches in Debot may be compensated for by strength on either or both of the others.[^8] I would have done so, and communicated this weakness to counsel relative to the extent to which the redacted ITO permitted the defence to understand the nature of the information that was said to support the credibility of the CI. It was on the basis of my conclusion that the redacted ITO did not adequately set out the nature of that credibility related information, even though by that time I was aware of the contents of the unredacted ITO, that the application moved to the Step 6 Garofoli procedure and analysis.
[43] In my view, however, taking account of the further revised judicial summary of the redacted ITO, and having seen the redacted information that has been removed from the ITO as disclosed to defence counsel, I am satisfied that the test in Debot is met. Once account is taken of the further revised judicial summary of the CI’s information, and as compared to the unredacted information that was before the justice of the peace, it is plain that the nature of the information provided to the justice was compelling and corroborated. Moreover, there was information before the justice that would have permitted the justice to properly determine whether there were reasonable and probable grounds and whether the warrant should issue.
[44] Looking at the first of the three factors, I find that the tip that had been provided by the CI was compelling. It consisted of a number of distinct and unique elements, and similar elements have been held to be satisfactory in other recent cases. R. v. Caissey[^9] was another case where a previously untested confidential informant provided what the police regarded as a compelling tip. In concluding that the information obtained by the police was adequately corroborated, the Supreme Court observed that corroboration need not include the very criminality that is alleged by the informant and the verification of non-criminal details may suffice. Further, where the tip is regarded as compelling, that is sufficient to justify the issuance of a search warrant provided the police are able to corroborate certain elements of the tip and notwithstanding that the confidential informant may be previously untested.
[45] In this case, the compelling nature of the tip is established by the following information having been included in the content of the ITO sworn by the affiant to obtain the warrant:
(i) The CI had known the applicant, not by a moniker or street name, but by his name, for a particular specified period of time;
(ii) The CI had purchased cocaine directly from the applicant for a period of time. Indeed he had specific information about having purchased specific amounts of drugs on two specific occasions not long before the warrant was issued;
(iii) The CI did not just know the applicant’s address and apartment number, 212 Eglinton Ave. E., Apt. 1903. Of substantially greater importance, in addition to providing a description of the apartment building and its geographic location, he was able to provide specific information about the layout and furnishing of the interior of that apartment
(iv) The CI provided an accurate physical description of the applicant as a black male of approximately 35 years of age, who was muscular with a thin build 5’8” to 5’10” tall, and with a shaved head and face.
(v) The CI was able to provide the police with specific information relative to the applicant’s possession of cocaine and the manner in which he operated as a dealer of cocaine.
[46] It is particularly compelling that the information provided by the CI contained significant detail about where the applicant lived. The ITO reflects significant first hand detail from the CI. That information could only have been provided by a person who had been in the applicant’s apartment. The compelling nature of the tip is plain from the material that is set out in the ITO, and the nature of all of that information was provided to the applicant in the revised judicial summary. All of that information in its full particularity as set out in the unredacted ITO was before the justice as he considered whether the warrant should issue.
[47] Turning to the issue of corroboration, it seems obvious from the evidence presented on the voir dire that the police undertook surveillance activities to determine the applicant’s age, to determine from his driver’s licence and other MTO information that his vehicle was registered to that address, to confirm from a security guard at the building where the applicant lived and that Apt. 1903 was indeed registered to him and that he resided there. One of the police surveillance officers had also observed the applicant enter the underground parking lot, having left his vehicle behind, and take the elevator to the 19th floor and use keys to enter apartment 1903. Plainly, this information corroborates that the applicant did live in that apartment in that building.
[48] Counsel for the defence complains that although surveillance took place, it provides no compelling observations and in particular, no hand-to-hand transactions were observed. As a result, the only information relative to past transactions is that of the CI, and yet, she argues, those transactions cannot be corroborated. Clearly there is a lack of corroboration of prior criminal activity on the part of the applicant, although the CI said it is ongoing. As such, defence counsel argues that the police surveillance should have observed the applicant engaging in other transactions, even if they only did a small amount of surveillance.
[49] The problem with this contention, however, is that the CI’s description of ongoing activity does not necessarily relate to a day-to-day basis in the days immediately before the warrant was issued, but could involve the CI speaking of what he/she knows in the context of a longer duration relationship. Nevertheless, I do agree with her that D.C. Askin does not specifically mention in the ITO that the police officers had not observed any other drug transactions take place, even if it is implicit that they did not since they would have mentioned such observations had they occurred.
[50] Further, even though one of the officers indicated in his notes and testified at the preliminary inquiry that he did observe the applicant with his girlfriend and her child, that observation was also not included in the ITO. In fairness, however, that was an observation made after the ITO had been prepared and submitted to the justice, and after it had been issued, so it is not surprising that it would not be contained within the ITO sworn to obtain the search warrant.
[51] At best, it is argued that this absence of corroboration undermines the CI because in counsel’s view, whether he/she is a reliable or proven source cannot be corroborated and the information that he/she provides that trafficking is occurring is not corroborated. Assuming the CI can be regarded as credible, a point I will address in the next section of this analysis, we are left with a body of information that is a compelling and detailed tip provided by a first-time informer, where there is some limited corroboration. Crown counsel argues, and I agree, that the decisions in R. v. Caissey and R. v. MacDonald[^10] resolve this issue.
[52] In both cases there was a first-time confidential informant. The information in those cases was not unlike the information here, though more detailed in some respects and less detailed in others. No criminality was confirmed, but as the Supreme Court said, none was required. Both cases confirm that the “Three C’s” analysis does not require corroboration of criminality, even if the source is untested or anonymous.
[53] In Caissey, a first-time source provided information about the appellant’s apartment, the name of his roommate, the description of his vehicle, the absence of children in his apartment, and that he had seen drugs in the apartment within the preceding three days. Police confirmed much of the innocuous biographical information, but they were unable to confirm any of the criminal elements of the tip.
[54] In MacDonald, an anonymous tipster provided descriptive information about the appellant, including his alias, his height, weight, skin/eye/hair colour, the fact that he had a tattoo on his hand and that he drove a rental car, and that he lived at either his mother’s or his uncle’s house. Further, the tip included that he had drugs and guns in his home, and was known to carry a gun and deal drugs, and that the tipster had seen him “flash” a gun. Once again, police were able to corroborate the innocuous biographical information but none of the criminal elements of the tip. Unlike here, however, the police did discover that the appellant had a recent and related criminal record.
[55] While there is no gun-related information in this case, there are two other aspects of those cases that I regard as strongly supportive. In MacDonald, the tip was bare and had no first-hand information. In this case, the tip is far more compelling because it is based upon the first-hand information and the experience of the CI. Secondly, in MacDonald, the tipster was anonymous. In this case, however, the CI was not anonymous. There could be no credibility element in MacDonald, even if the CI there was a first-time informant, because he/she was anonymous. Here, the tip was provided in person by the CI, a known individual. That would have permitted the officers to assess the CI as he/she relayed his/her information, relative to indicia of credibility and reliability.
[56] Finally, let me address the issue of credibility of the CI and whether his/her information can sustain examination under Debot when he/she is admittedly an untested first-time informant.
[57] Crown counsel freely acknowledges that the factors present in this case both enhance and detract from the credibility of the confidential informant. On the negative side, having never provided confidential information before, the CI had no proven track record. Further, the CI was motivated to provide information to the police by the prospect of receiving consideration, had a criminal record, and was involved in the drug trade. Plainly, he/she is an unsavoury person by his/her own admission.
[58] Interestingly, relative to the content of the judicial summary, Crown counsel had initially been very ambiguous in the disclosure provided to defence counsel relative to past offences of the CI on the basis that that information was protected by informer privilege. Nevertheless, following debate and Crown counsel’s reconsideration of the content of the initial judicial summary, more specific information was provided in the revised judicial summary relative to those prior offences. While maintaining the level of generality necessary to protect the CI’s identity, the enhanced disclosure satisfied defence counsel relative to the particularities of the dates of the CI’s offences and that the specific nature of the CI’s prior offences was in fact disclosed to the justice. This must certainly make clear that the justice herself would have been able to assess impact of those prior convictions on her assessment of the ITO.
[59] Nevertheless, the CI’s criminal record was somewhat dated, going back a number of years, a fact that would have been evident to the justice of the peace, so it might not have attracted the same degree of skepticism as a record of more recent origin. On the other hand, counsel for the defence counters with the skeptical explanation that it simply means that the CI was not caught engaging in criminal activity during those intervening years.
[60] From a positive perspective, D.C. Askin clearly believed based on his encounter with the CI that the CI was attempting to turn his/her life around. Moreover he/she was cautioned regarding public mischief and misleading the police, and was assured that no consideration whatsoever would be forthcoming unless the information proved to be fruitful. The informer advised the police that he/she understood the need to be honest and straightforward with them.
[61] First-time informants present the inevitable conundrum of no prior instances against which their credibility can be assessed. This may amount to cold comfort relative to credibility from the perspective of defence counsel, but certainly every informant at some time disclosed confidential information to police authorities for the very first time.
[62] But it is also important to note that D.C. Askin could not confirm the credibility of the information provided by the CI, and more importantly, that the justice of the peace was aware of that deficiency. There was no evidence before the justice with respect to when the CI’s information may have been obtained, and we can infer that the justice of the peace proceeded on the basis that the information was untested. Notwithstanding that information, the justice issued the warrant.
[63] Moreover, as previously noted, this was not a case of an anonymous source, but rather an instance where the information was provided directly to the police. The officer had a conversation with the CI, directly and in person. That would have provided the officer with at least some opportunity to make an initial and surface level assessment of him/her and what he thought relative to the credibility and reliability of the information that was being provided.
[64] Nevertheless, the case law reminds us that weakness with respect to credibility can be countered by the strength of the compelling nature of the confidential information, and its corroboration. A weakness on credibility relative to a confidential informant is not the end of the matter. It can be offset by the strength and particularity of the disclosure made by the CI: see Caissey and MacDonald, above.
[65] Finally, given that we engaged in the process contemplated in Step 6 of Garofoli, and having had the opportunity to review the ITO sworn by D.C. Askin in its unredacted form, I had the opportunity to have in front of me exactly the same information that the justice of the peace had in front of him when he considered whether or not this warrant could or should issue. The particularity of the information that was in front of the justice, relative to the particular circumstances of Mr. Rugigana, and the detail that was provided by the CI, satisfy me that there were reasonable and probable grounds to believe that the applicant had and was trafficking in crack cocaine, that the CI knew this, and that his tip was credible and compelling because of its specific detail.
[66] I am therefore satisfied that the confidential information provided by the CI was not only compelling and corroborated, but also credible, and that the justice of the peace acting judicially and having that information in front of him not only could but ought to have issued the warrant, as he did.
Section 24(2) Analysis
[67] While I have concluded that police had reasonable and probable grounds to obtain a warrant, and that the ITO prepared by D.C. Askin met the requirements established in Debot, if I am mistaken in reaching that conclusion, I would still have admitted the evidence and declined to exclude it under s. 24(2) of the Charter.
[68] Defence counsel focused her submissions on an alleged lack of care and lackadaisical attitude on the part of police towards the preparation of ITOs generally, and the one in this case in particular. This was a warrant that permitted the police to enter the applicant’s home and to conduct a search at that premises. The applicant evidently has a very high expectation of privacy in his home, one which calls for proper authorization in accordance with the Charter.
[69] Defence counsel submits, in accordance with R. v. Sutherland,[^11] that the lackadaisical attitude displayed here was serious and requires that the police authorities be remonstrated for their lack of care. She claims the police did not do their job. Even if there were no falsehoods stated in the ITO, she claims they were simply going through the motions. Acknowledging that the standard is not one of perfection, she nevertheless says that this case represents a serious Charter breach and that the balance ought to be exercised in favour of exclusion of the evidence because it is a warrant for the invasion of a private family home.
[70] Counsel for the Crown resists these characterizations vigorously and is insistent that D.C. Askin acted in good faith in the preparation of the ITO. If there was Charter infringing conduct, assuming that the police did not have reasonable and probable grounds, or that the ITO presented to the justice was deficient, he argues that they acted in good faith but are not required to perform to a level of perfection.
[71] In my view, the police were not nonchalant in their preparation of this warrant. In any event, the police do not have an obligation to continue to investigate or to continue to undertake surveillance once they believe that they have reasonable and probable grounds to obtain a warrant. That was exactly what happened here. A warrant, once issued by the justice of the peace, is presumptively valid. Consequently, there is no basis to impugn the motives of the police, and D.C. Askin in particular, in the preparation of his affidavit to obtain that warrant, despite the mistakes that may be evident on its face.
[72] Clearly, there were mistakes made in the recording of dates in the ITO, but it seems plain to me when one looks at how those dates interact, and the manner in which the paragraphs that contain them relate to each other, that it could not have been deliberate and evidences no intent to mislead. Neither, in my view, should Crown counsel’s concessions that the Mannix checks ought not to have been included undermine this position. The affiant is required to be “full, frank and fair” in the information that is included within an ITO sworn before a justice of the peace. The Mannix checks show that the applicant, Mr. Rugigana, had a criminal record, but Crown counsel does not rely upon the presence of that record, and agrees it should be excised. More importantly, when the existence of that information is excised, it is not a fundamental piece of information such that the warrant would not have issued without its presence.
[73] Moreover, whatever the position of counsel relative to a lack of care on the part of the affiant, I also specifically note that there was no cross-examination of D.C. Askin, either at the preliminary inquiry or before me. As such, it is inappropriate in my view to condemn his conduct or attribute bad motives to him when he was not questioned about the manner in which he prepared that affidavit, and was not provided with an opportunity to respond to those kinds of allegations.
[74] Garofoli contemplates that the kind of mistaken inclusions that ought to give rise to the striking of a warrant, and a decision by the Court to exclude the evidence, are those that strike at the core of its validity. It must be conduct that approaches or amounts to fraud on the part of the affiant in the declaration of that ITO and its presentation before the justice. The errors in this case do not approach that level of seriousness, and even once those errors are excised, it is clear in my view that the justice of the peace could still have issued that warrant.
[75] The evidence itself consists of a pound of cocaine and $34,000 in currency. In my view, the analysis established under R. v. Grant[^12] favours admission: the police in good faith sought a search warrant and secured the approval of the judicial officer. While the execution of a warrant at a person’s residence will always constitute a significant and substantial intrusion on the privacy interests of the applicant, the search was carried out in a reasonable and professional manner. Finally, the evidence that was discovered at Mr. Rugigana’s apartment is reliable and essential to the search for the truth, and it goes to the heart of the Crown’s case. If that evidence were to be excluded, there would be no trial and there would be no case. As such, I accept that on balance, a well-informed member of the public would lose faith in the administration of justice if the evidence in this case were to be excluded.
Conclusion
[76] In summary, the application is dismissed. The police had reasonable and probable grounds to obtain the warrant they sought, and the justice of the peace could have issued that warrant on the basis of the information in the ITO. There was no breach of Mr. Rugigana’s Charter rights. If I am mistaken in reaching that conclusion, I would nevertheless have included the evidence and denied the defendant’s efforts to exclude it from his trial. It follows, given the agreement of counsel, that the inclusion of the evidence satisfies the Crown’s burden to prove the offences of possession of crack cocaine for the purposes of trafficking and possession of proceeds of property obtained by the commission of a criminal offence in Canada beyond a reasonable doubt. Convictions will be entered on both counts.
Michael. G. Quigley J.
Released: April 10, 2015
Appendix 1: R. v. Rugigana
Judicial Summary: “Before” and “After” comparison chart
Paragraph 1:
• Details regarding the source’s criminal record including timeframe, number and nature of convictions.
Paragraph 1:
• Municipality in which the source resides.
• Details regarding the nature of the source’s criminal record including:
[1] Time frame in which convictions occurred, and that they are dated.
[2] Number of convictions
[3] Detailed description of the nature of offences for which convictions have been registered
Paragraphs 2-3:
• Circumstances relating to the source providing information to the police in relation to this investigation.
• Whether the source has any outstanding criminal charges.
Paragraphs 2-3:
• Circumstances relating to the source providing information to the police in relation to this investigation, including specific date.
[4] The date referred to in this paragraph is the same date as in paras. 12-17.
[5] The specific date is preceded by a reference to the weekday ‘Friday’, which, as in paras. 12, 13, and 14, is in error.
• Whether the source has any outstanding criminal charges(s), and if so, the nature of the charge(s).
Paragraph 5:
• Nature of the source’s motivation for providing information to the police – in particular, what consideration the source wanted from the police in exchange for providing the information.
Same
Paragraph 6:
• Details about the source’s current circumstances.
Paragraph 6:
• Whether the source is employed, and why the source became involved in drug trafficking.
Paragraph 7:
• Details about the source’s personal circumstances.
Paragraph 7:
• Expression by source of desire to change current lifestyle for the better.
Paragraph 8:
• Nature of the source’s motivation for providing information to the police – in particular, what consideration the source wanted from the police in exchange for providing the information.
Same
Paragraph 9:
• Detail about the source’s current circumstances.
Paragraph 9:
• Recognition by source of current opportunity to change his/her life around for the better.
Paragraph 12:
• Specific date that Detective Johnston spoke to the affiant.
• Specific location that Detective Johnston detailed the affiant to attend.
• Detective Johnston provided the affiant with information that the source was at a particular location and wished to provide information.
Same
Paragraph 13:
• Specific day and date that the affiant attended the specific location referred to in paragraph 12.
Same
Paragraph 14:
• Specific day and date that the affiant spoke to the source.
• d) Nature of the consideration sought by the source from the police for providing information – the same consideration as described in paras. 5 and 8, and 14d.
• f) Nature of the consideration sought by the source from the police for providing information – the same consideration as described in paras. 5, 8, and 14d).
• i) General time period.
• n) Description of the general amounts purchased and the general time period of the purchases.
• r) Detail about the source’s purchasing of cocaine – the location and general number description number of purchases.
• s) Detail about the address.
• t) Detail about the address.
• u) Detail about the address.
• v) Detail about the address.
• w) Details regarding the manner and location in which the source purchases cocaine from Rugigana.
• x) Detail about the cocaine sold by Rugigana.
• y) Specific date and location.
• z) Specific amount of cocaine requested for purchase.
• aa) Detail about an amount of cocaine possessed by Rugigana that was observed by the source and the location in which it was observed.
• bb) Detail about the purchase.
• cc) Detail about the purchase.
• dd) Detail about the purchase and the specific amount paid by the source.
• ee) Detail about Rugigana’s supply of cocaine.
• ff) Specific date and location of the source’s drug related conversation with Rugigana and the specific amount of cocaine requested by the source.
• gg) Details regarding the location and manner of the purchase.
• hh) Detail about the manner of the purchase and the specific amount paid by the source.
Paragraph 15:
• Specific date.
Same, except for:
• d) Nature of the consideration sought by the source from the police for providing information – the same consideration as described in paras. 5 and 8.
• i) General description of a time period.
• r) Detail about the source’s purchasing of cocaine – the location and general description of the number of purchases.
• s) Detail pertaining to the source’s source of knowledge about the address.
• y) Specific date and location.
[6] This is the same transaction referred to at paragraphs 14 y-dd, 26, 31 e, 35, and 38 i.
• ff) Specific date and location of another drug related conversation between the source and Rugigana and the specific amount of cocaine requested by the source.
• hh) Details about the manner of the purchase and the specific amount paid by the source.
Same
Paragraph 16:
• Specific date.
Same
Paragraph 17:
• Specific date.
Paragraph 17:
• Paragraph excised.
Paragraph 18-19:
• Incapable of summarization.
Same
Paragraph 20:
• Date of birth.
Same
Paragraph 25:
• Belief that Rugigana traffics cocaine from the address.
Same
Paragraph 26:
• General time period during which the source has been purchasing cocaine from Rugigana.
• Specific date and specific location the source purchases cocaine from Rugigana.
• The general amount of cocaine purchased on this occasion.
• Amount of cocaine observed by the source during the purchase and the location that the observation was made.
• Specific amount of cocaine purchased and specific amount of money paid for the cocaine on this occasion.
Paragraph 26:
• General time period during which the source has been purchasing cocaine from Rugigana.
• General and one specific date and specific location where the source purchased cocaine from Rugigana.
• The general amount of cocaine purchased on this occasion.
• Detail about an observation made by the source during the purchase.
• Specific amount of cocaine purchased and specific amount of money paid for the cocaine on this occasion.
[7] Same transaction referred to at paragraphs 14y
Paragraph 27:
• General amount of cocaine.
Same
Paragraph 28:
• Detail about the location/frequency of the source purchasing cocaine from Rugigana.
Paragraph 28:
• Detail about the specific location and general frequency of the source purchasing cocaine from Rugigana.
Paragraph 29:
• Detail regarding the address.
Same
Paragraph 30:
• Detail regarding the address.
Same
Paragraph 31:
• a) Incapable of summarization.
• b) Incapable of summarization.
• c) Detail regarding the address.
• d) The source and timing of the source’s information regarding a large quantity of cocaine in the address.
• e) Specific date.
• f) Details regarding the manner of Rugigana’s cocaine sales to the source.
Paragraph 31:
• a) Incapable of summarization.
• b) Incapable of summarization.
• c) Detail regarding the address.
• d) Source and timing of the source’s information regarding the cocaine in the address.
• e) Specific date.
[8] This is the same transaction referred to at paragraphs 14 y-dd, 26, 31 e, 35, and 38 i.
• f) Details regarding the manner of Rugigana’s cocaine sales to the source.
Paragraph 34:
• Time period.
Same
Paragraph 35:
• Specific date and specific location of purchase.
• Specific location and approximate amount of cocaine observed by the source.
• Specific amount of cocaine purchased by the source and the specific amount of money paid to Rugigana for the cocaine.
• [This is the same transaction detailed in paragraphs 14 y-dd, 26, 31 e, and 38 i].
Paragraph 35:
• Specific date and specific location of purchase.
• Specific location and approximate amount of cocaine observed by the source.
• Specific amount of cocaine purchased by the source and the specific amount of money paid to Rugigana for the cocaine.
[9] This is the same transaction referred to at paragraphs 14 y-dd, 26, 31 e, 35 and 38 i.
Paragraph 36:
• Details regarding the general amount and specific location of cocaine observed by the source and the specific day that this observation was made.
Same
Paragraph 37:
• Specific amount.
Same
Paragraph 38:
• c) Incapable of summarization.
• d) Incapable of summarization.
• f) Specific amount, location and date.
• i) Specific amount and date.
Same
CITATION: R. v. Rugigana, 2015 ONSC 2233
COURT FILE NO.: CR-13-90000087-0000
DATE: 20150410
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ERIC RUGIGANA
Defendant/ Applicant
REASONS FOR RULING
Re: Charter s. 8, Garofoli Application
Michael G. Quigley J.
Released: April 10, 2015
[^1]: Initially, the defendant also intended to challenge the voluntariness of the statement he gave to police shortly after being arrested, where he exonerated his common-law spouse and acknowledged that the drugs and money found in his apartment belonged to him. Although that application was filed and before the court, I was advised it would not be pursued.
[^2]: 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161.
[^3]: See, for example, the detailed discussion of procedure in R. v. Crevier, 2013 ONSC 1880 at paras. 33-53, [2013] O.J. No. 5833, and R. v. Thompson, 2014 ONSC 250 at paras. 48-77, [2014] O.J. No. 138.
[^4]: Garofoli, para.79, suggests that only after the formal determination is made that the ITO in its redacted form cannot support the warrant should the Step 6 procedure be turned to.
[^5]: 2010 ONSC 3816, 258 C.C.C. (3d) 68.
[^6]: See R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 8, [2005] 3 S.C.R. 343; R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30 at paras. 24-26, [1990] S.C.J. No. 2.
[^7]: 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118.
[^8]: Debot, at para. 53.
[^9]: 2008 SCC 65, [2008] S.C.J. No. 66, aff’g 2007 ABCA 380, [2007] A.J. No. 1342.
[^10]: 2012 ONCA 244, [2012] O.J. No. 1673.
[^11]: (2000), 2000 17034 (ON CA), 52 O.R. (3d) 27 (C.A.), 150 C.C.C. (3d) 231.
[^12]: 2009 SCC 32, [2009] 2 S.C.R. 353.