R. v. Jablonski, 2015 ONSC 2325

R. v. Jablonski, 2015 ONSC 2325

CITATION: R. v. Jablonski, 2015 ONSC 2325

COURT FILE NO.: 14-4457

DATE: 2015-04-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Nicholas White, Federal Crown for the Respondent

Respondent

• and -

PAWEL JABLONSKI

Michael Wendl, for the Applicant/Respondent

Applicant/Accused

HEARD: January 6, 2015

RULING

1Although the relief sought in the accused’s “Notice of Application and Constitutional Issue” is a stay of the proceedings and an order declaring the search of his home to have been a violation of his rights under s. 8 of the Charter and prohibiting any evidence derived from that search from being admissible at trial, I believe that by the time defence counsel arrived at his ultimate position in the factum, he had come to the conclusion that a stay of proceedings was inappropriate, and that the quashing of the search warrant and exclusion of evidence were his true goals.

2Mr. Jablonski’s apartment was searched pursuant to a search warrant granted by a justice of the peace on the basis of an information to obtain affidavit sworn by Detective Constable Sara Martin. The search of the apartment revealed:

1. 750 grams of cocaine;

2. 250 grams of crack cocaine;

3. 400 80 milligram oxycodone tablets;

4. 100 40 milligram oxycodone tablets; and

5. 500 hydromorphone tablets.

3Mr. Jablonski was charged with possession for the purpose of trafficking in respect of cocaine, oxycodone, and hydromorphone.

4The same information to obtain sought (and resulted in) warrants permitting the search of the alleged residence of one Daniel Herder, of a second residential property allegedly owned by him, and of a Ford truck registered to him.

5Because the search of Mr. Jablonski’s apartment was authorized by a warrant, the onus is upon him to show a breach of his rights to be secure from an unreasonable search and seizure, such rights being enshrined in s. 8 of the Charter of Rights.

6In Hunter v. Southam, reported at 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, Justice Dixon of the Supreme Court of Canada wrote that minimal compliance with s. 8 of the Charter requires that judicial authorization for search and seizure be based upon proof of reasonable grounds, established on oath, for believing that an offence had been committed and that there is evidence to be found at the place of the search. In the same decision, Justice Dixon stated that “the State’s interest in detecting and preventing crime begins to prevail over the individual’s interest in his being left alone at the point where credibility-based probability replaces suspicion”.

7Logically enough, a search warrant is sought and obtained on an ex parte basis. This obliges the informant to make full and frank disclosure of material facts. In R. v. Morelli, reported at 2010 SCC 8, 2010 S.C.C. 8, Justice Fish reiterated the duty “to present all material facts, favourable or not”. He elaborated thusly: the informant must “avoid incomplete recitation of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed”.

8In that same decision, Justice Fish summarized the general principles governing my review. I must:

1. not substitute [my] opinion for that of the authorizing judge; instead I must determine whether there was sufficient credible and reliable evidence to have permitted the warrant to be issued;

2. must excise erroneous statements; and

3. may amplify the warrant application but only to correct minor, technical errors made in good faith, not to adduce additional information so as to retroactively authorize a warrant that was not supported by the requisite grounds in the first place.

9In R. v. Araujo, reported at 2000 SCC 65, 2000 2 S.C.R. 992, Justice LeBel quoted from R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.) at para. 56, to clarify my role:

The reviewing judge does not substitute his or her view for that of the

authorizing judge. If, based on the record that 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.

10I turn to the issue of what reasonable and probable grounds relative to Mr. Jablonski are to be found in the ITO. I am not unaware that a good deal of the ITO alleges drug dealing by Mr. Herder and that the assertion therein of an “association” between Messrs. Herder and Jablonski could be interpreted as raising some kind of grounds relative to the latter, however, I am going to focus on the direct allegations against Mr. Jablonski.

11Confidential informant D provided information to some constable, whose name has been redacted, that Messrs. Jablonski and Herder are dealing cocaine in Hamilton and that Mr. Jablonski had a missing finger on his right hand. Source D is a registered informant with the Hamilton Police Service and is “past proven and tested”, according to his “qualification” at appendix F of the ITO.

12In April of 2012, a confidential informant E provided information that Mr. Herder and someone named “Paul” were trafficking cocaine in Hamilton, and that “Paul” is missing a finger. Source E is described in the relevant “qualifier” as a “first time source” providing information “for consideration of charges”.

13The ITO, at paragraph 65, indicates that on April 16, 2012 a “known drug dealer” got into the passenger’s seat of a car registered to Mr. Jablonski. Paragraph 65 is so clumsily drafted that it is unclear to me whether the drug dealer is the person named therein as Dawn Bunton. The same bad drafting makes it unclear if Mr. Jablonski was in the driver’s seat. In any event, paragraph 65 advises that Mr. Jablonski and Ms. Bunton were both arrested, and that she was found to be in possession of 0.36 grams of crack cocaine. I note that the confusion apparent in the drafting was carried forward into the deponent’s testimony at the preliminary inquiry on this point.

14At some undisclosed time, the deponent of the ITO learned that Mr. Jablonski lived at 110-209 Oakland Drive in Hamilton. This was confirmed by the building superintendent.

15On August 2, 2012, the police stopped a truck owned and driven by Mr. Herder because it has an expired validation tag. A passenger in the truck was identified as Mr. Jablonski. I presume that this is included in the ITO to support association between the two.

16At some point in November of 2012 confidential source D provided information that Mr. Jablonski is a drug runner for Mr. Herder.

17Police surveillance conducted on November 27, 2012 came up with the observation that Mr. Herder’s truck was seen in the pull through driveway of Mr. Jablonski’s apartment building and that Mr. Herder was seen to get into that vehicle and drive off.

18Paragraph 9 of the ITO endeavours to connect the information received from source D to Mr. Jablonski’s apartment. The second bullet point reads in part “The information is further significant because Daniel Herder is still trafficking cocaine”. There is a line and a half of redacted type, followed by “This makes it reasonable to believe that Daniel Herder is trafficking cocaine from Paul Jablonski’s residence located at 110-209 Oakland Drive in Hamilton”.

19Although the argument and factum presented on behalf of Mr. Jablonski both took a scattergun approach to the issues, I believe that the point sought to be made is that the ITO is deficient mainly for the following reasons:

1. that it did not make full and fair disclosure;

2. that the evidence relating to the confidential sources and their information is inadequate;

3. that some of the information relayed was obtained unconstitutionally and ought to be excised.

20I shall address these positions individually.

a) Lack of full and fair disclosure generally

21In his factum, Mr. Jablonski focuses his argument on this issue upon three instances of what he says is a lack of full and fair disclosure.

22The first has to do with the execution of an earlier search warrant in January of 2009 at the residence of Mr. Herder and his girlfriend.

23I pause to note that Mr. Jablonski is not even mentioned in the description of that execution. I presume that this argument is raised because of the “association” references as between Messrs. Herder and Jablonski.

24Paragraph 35 of the ITO addresses this incident. It describes the finding of cocaine, cash, and electronic scale, and debt lists said to be “indicative of drug trafficking”. The girlfriend managed to trick the police officers present and flushed the cocaine down the toilet. Nonetheless, she and Mr. Herder were charged with possession of cocaine. She was additionally charged with obstructing the police. What the ITO fails to mention is that the charges against both Mr. Herder and the girlfriend were withdrawn and that the cash seized was returned to them. This was confirmed by the deponent of the ITO at the preliminary inquiry.

25While I remain of the view that this has very limited, if any direct relevance to Mr. Jablonski, I agree that the deponent failed in her duty to make full and frank disclosure in this instance. She obviously thought that the arrests were relevant to making her submissions to the authorizing judge. The charges being withdrawn is equally relevant.

26The second area of complaint regarding disclosure in Mr. Jablonski’s factum has to do with one Detective Constable Ruthowski. That detective was the author of a general occurrence report, which report framed the basis for the ITO deponent’s paragraph 65, just described. Paragraph 50 of Mr. Jablonski’s factum reads as follows: “Also not included in the ITO is any mention of Officer Ruthowsky’s (sic) police board hearings or criminal charges of perjury (if they were laid at the time). Charges which at their core go to Officer Ruthowski’s credibility”. I interpret the bracketed phrase to mean that defence counsel did not bother to research the point before submitting the factum.

27The Crown counters that defence counsel is aware that all criminal charges against Ruthowski have been withdrawn by the Crown, suggesting that there is some lack of disclosure going in the opposite direction. There is no evidence before me of the precise nature of those charges, of when they were laid or withdrawn relative to the drafting of the ITO, or of the state or timing of Mr. Wendl’s knowledge in respect of them. Accordingly, it is impossible for me to comment intelligently on this specific point.

28The third area relating to the alleged failure to make full and frank disclosure in the ITO relates to the arrest of Mr. Jablonski described at paragraph 65. This, it is to be remembered, had to do with a “known drug dealer” getting into Mr. Jablonski’s vehicle on April 16, 2012. What is not disclosed in the ITO is that Mr. Jablonski was released unconditionally, according to paragraph 51 of his factum. I should also note that paragraph 65 of the ITO does not mention the charges under which Mr. Jablonsky was allegedly arrested. I presume that this release was almost immediate and knowable well before the ITO was sworn. I agree that there has been a failure by the deponent to disclose on a full and frank basis. In my mind, the ITO leaves the impression that at the time of its being sworn, Mr. Jablonski was still facing a charge or charges as a result of this incident. That is misleading and improper.

b) Alleged shortcomings in the ITO relevant to confidential sources of information.

29Here the deponent of the ITO made reference to five confidential informants, identified as sources A through E.

30In R. v. Debot, reported at 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at paragraph 53, Justice Wilson established a three part test for determining if reliance on an informant’s tip in the granting of a search warrant is justified. The test is set out in the following language:

Firstly, was the information predicting the commission of a criminal offence compelling;

Second, where that information was based upon 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?

31Wilson J. goes on to state that “the totality of the circumstances” must meet the standard of reasonableness and that “weakness in one area may, to some extent, be compensated by strengths in the other two”.

32Justice Ferguson, of this court, expanded upon the issue of informant reliability in his decision in R. v. Nguyen and Nguyen, reported at 2010 ONSC 1520. Although His Honour’s ruling was later overturned by the Ontario Court of Appeal, his comments on informant reliability were not the subject of disagreement by the justices of appeal.

33His Honour stated “When dealing with informants:

a) it is important to ascertain whether the “tip” contains sufficient detail to ensure that it is based on more than mere rumour or gossip;

b) it is important to ascertain whether there are any indicia of the informant’s reliability;

c) it is important to know the informant’s source of knowledge and its reliability; and

d) it is important to know if the informant is acting vindictively.

34On the fourth point, His Honour indicated in his decision that he is relying upon one Supreme Court of Canada decision and several from the Ontario Court of Appeal in enunciating this part of the test.

35Mr. Jablonski is critical of the ITO as it relates to reliance upon confidential sources on several bases. I shall endeavour to follow Ferguson J.’s four part test on reliability and relate them to the argument and evidence here.

36The first task is to ascertain whether the “tip” contains sufficient detail to ensure that it is based on more than mere rumour or gossip.

37Confidential informants A, B and C make no mention of Mr. Jablonski, at least in the redacted ITO before me.

38Source D’s tip or tips may be summarized from the redacted ITO as follows:

i) Messrs. Herder and Jablonski are dealing cocaine in Hamilton;

ii) Mr. Jablonski is a male, with blond hair, who is missing a finger on his right hand;

iii) Messrs. Herder and Jablonski meet customers to sell them cocaine in Hamilton; and

iv) Mr. Jablonski is a drug runner for Mr. Herder.

39While there are some details contained in those tips, such as the type of drug involved and a city where the alleged trafficking takes place, and some physical particulars of Mr. Jablonski, much of the information is merely bald assertion.

40Source E’s tip, essentially, is that Mr. Herder and someone named “Paul” are trafficking cocaine in Hamilton and that Paul is missing a finger. Once again, bald assertions are predominant.

41Ferguson’s second admonition is that it is important to ascertain whether there are any indicia of the informant’s reliability. Accordingly to the redacted “qualifier” in the ITO Source A is a first time informant who uses something unidentified on a regular basis.

42Source B’s redacted “qualifier” indicates that he or she is an unproven source who is “heavily entrenched in the drug subculture” somewhere.

43Source C’s redacted “qualifier” indicates that he or she is a first time source addicted to something unidentified.

44Source D’s redacted “qualifier” indicates that he or she is a registered informant with the Hamilton Police Service, and is “past proven and tested”. Past tips have led to arrests, seizures of some cash and cocaine.

45Source E’s “qualifier” shows him or her to be a registered informant with the Hamilton Police Service, albeit an unproven one at the relevant time, or at least I think that it was meant to be described.

46Accordingly, there is some indicia of reliability relating to Sources D and E only. It is to be remembered, however, that Sources D and E are the only ones that address Mr. Jablonski at all.

47Ferguson J.’s third aspect of reliability testing has to do with the informant’s source of knowledge and its reliability. Here the redacted ITO makes no mention of the informant’s own sources, and therefore nothing is known about the reliability of those sources.

48Ferguson J.’s fourth and last test has to do with ascertaining to the degree possible whether the informant is acting vindictively.

49This obviously relates to the source’s motivation in general. In the present case, no motivation is provided for Source A’s co-operation with the police. Source B “is motivated to provide information to police for consideration of their (sic) own situation”. Source C “provided information for consideration of charges”. No motivation is mentioned for Source D. Source E “provided information to assist with their own (sic) own charges”.

50None of this suggests vindictiveness on the part of any confidential source. However, it does lead to consideration of Mr. Jablonski’s criticism of the fact that none of the current charges in respect of which Sources C and E were acting are described in any way. I do not know if Source B’s “own situation” relates to criminal charges. If so, no details are given.

51In the case of all sources, there is no disclosure at all of their criminal records, if any. While I agree that disclosure of both the details of any current charges providing motivation for co-operation and of past criminal records might have been helpful in ascertaining the reliability of information provided by the confidential sources, I disagree with the suggestion that the failure to provide that disclosure is contrary to the Ontario Court of Appeal decision in R. v. Rocha, reported at 2012 ONCA 707 and is fatal to the ITO. R. v. Rocha indicates that such disclosure is preferable and in compliance with best practices, but it is not mandatory.

52In sum, there is little to suggest that the information provided by the confidential informants as set out in the ITO is particularly reliable. That being said, it is not to be discounted entirely.

53I turn to Wilson J.’s test in R. v. Debot (supra) relating to the corroboration of information provided by confidential sources. In the present case, I agree with Mr. Jablonski’s counsel that the ITO discloses very little police corroboration of the information provided by the informants and none relating to actual criminal activity on his part. Confirming innocent details like his missing index finger or his home address does carry much weight. I agree that there is no corroboration of the assertions by confidential sources that Mr. Jablonski is involved in narcotics.

54The boiler plate assertion that the source has no conviction for perjury or obstruction of justice, as is made in respect of Sources A, B and E has been held in other rulings to be meaningless at best and deceptive at worst, and I agree. Similarly, statements such as “The information provided by Source A has been corroborated through police investigation” or, “The information provided by Source D is believed to be accurate and reliable” do not constitute meaningful corroboration in my view.

55Mr. Jablonski also argues that some of the information contained in the ITO was obtained unconstitutionally, and, accordingly, must be excised and not taken into consideration when making my review. If I understand that argument correctly, I believe that at its heart it relates to the disclosure of paragraph 54 of the ITO that Mr. Jablonski was identified as a passenger in Mr. Herder’s truck in the course of a traffic stop and the disclosure at paragraphs 64 and 65 regarding Mr. Jablonski having been stopped in his vehicle when a “known drug dealer” got into it, as previously described.

56In the course of stopping and addressing with Mr. Herder an expired license sticker on his truck, the relevant officer asked Mr. Jablonski for his identification. Mr. Jablonski was described as being “the passenger” in the truck at the time. This stop was for a Highway Traffic Act offence. I presume that this presence as a passenger in Mr. Herder’s truck is included in the ITO to further the assertion that Messrs. Jablonski and Herder are “associated”. In any event, the majority in the Ontario Court of Appeal ruling in R. v. Harris, reported 2007 ONCA 574, 87 O.R. 3d 214, has ruled that asking a passenger for identification in the course of a traffic stop for a purpose unrelated to a Highway Traffic Act infraction violates his or s. 8 Charter rights. Accordingly, the identification of Mr. Jablonski as a passenger in Mr. Herder’s truck on the occasion in question, for whatever it may be worth as evidence, must be excised from the ITO.

57In his factum, at paragraph 46, Mr. Jablonski asserts that the stopping of his vehicle after a “known drug dealer” got into it, “looks to be an unconstitutional stop”. It goes on accurately, in my view, to assert that neither the occurrence report referred to in the ITO or the ITO itself reveals any grounds for arresting Mr. Jablonski. That paragraph makes no effort to distinguish between the stopping of Mr. Jablonski’s vehicle and his arrest. Regardless, I am not prepared to accept the Crown’s bald assertion at paragraph 24 of its factum that “The applicant alleges without foundation or facts that information obtained by Charter breaches is contained in the Information to Obtain. There is no foundation or basis for the allegation and all references thereto should be excised from the application. I have just described the facts and foundation for the arguments. They are more compelling than a simple denial.

58I am not satisfied that there was a lawful reason to stop Mr. Jablonski’s vehicle on the occasion in question or for him to have been arrested. If they were, they have not been argued before me. I accept that a Charter breach occurred and that excision is appropriate. I presume that the description of the event and resulting arrest were put into the ITO for the purpose of demonstrating that Mr. Jablonski somehow knew a “known drug dealer” well enough to let that person get into his vehicle. Ultimately that does not have much to do with his being a drug trafficker himself as is alleged overall.

59The redacted ITO leaves much to be desired. I shan’t repeat here my criticisms of it. The Crown chose not to invoke step 6 of the process set out in the R. v. Garofoli decision, and so I am left to rule upon this application without the benefit of a judicial summary of the redacted information. However, the standard of review is not a rehearing and my deciding whether I should have authorized the search warrant.

60I return to the R. v. Garofoli decision and repeat the proper standard of review:

“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 is amplified by the review” …and here I would add or as reduced by excisions… “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 import is to determine whether there continues to be any basis for the decision of the authorizing judge”.

61I am satisfied that there remains some basis for authorization, however scant, and I am not prepared to interfere.

62While it is probably unnecessary to do so, I shall briefly address whether the provisions of s. 24(2) of the Charter would permit the authorization to stand and the evidence found as a result of the ensuing search to be admitted notwithstanding a finding that there had been a breach of Mr. Jablonski’s s. 8 rights relative to the search.

63The appropriate test is to be found in the Supreme Court of Canada decision in R. v. Grant, reported at 2009 SCC 32, 2009 S.C.J. 32. Very briefly, I am to assess and balance the effect of admitting the evidence on society’s confidence in the judicial system having regard to:

1. the seriousness of the Charter infringing state conduct, bearing in mind that admission may send the message that the justice system condones serious state misconduct;

2. the impact of the breach on the Charter protected interests of the accused (admission may send a message that individual rights count for little); and

3. society’s interest in adjudicating the case on its merits.

64Here I see evidence of police laziness and sloppiness in both its investigation and in the drafting of the ITO itself. I do not see hard evidence of bad faith or a deliberate or flagrant disregard for Mr. Jablonski’s rights. Thus, the seriousness of any breach is not very high.

65Here the impact of the hypothetical breach would have been high given that the search involved Mr. Jablonski’s apartment, wherein he had and has a valid and significant expectation of privacy.

66Here society has a real interest in this case being adjudicated upon its merits. Cocaine and oxycodone abuse has been a scourge upon this city and region for many years. One need only to step outside this court house to see its effects and the societal toll it takes.

67On balance, if I had found a Charter breach to have taken place, I still would have ruled in favour of admitting the evidence.

68The application is dismissed.