CITATION: R. v. Chen, 2015 ONSC 2930
COURT FILE NO.: CR-13-90000328-0000
DATE: 20150505
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Jeremy Streeter for the Crown
- and -
DANIEL CHEN
Leora Shemesh for Daniel Chen
HEARD: April 13, 14, 15, 2015
RULING ON APPLICATION TO EXCLUDE EVIDENCE
Corrick J.
Introduction
[1] Daniel Chen is charged with twenty-eight offences arising from numerous searches of his residence conducted by the police pursuant to a number of general warrants. The warrant at issue in this application was granted pursuant to s. 487.01 of the Criminal Code on October 25, 2011. Between October 27, 2011 and June 26, 2012, police covertly entered Mr. Chen's residence twelve times to search for drugs and evidence of drug trafficking. During the searches, police discovered approximately 2.2. kilograms of cocaine, 9 kilograms of marijuana, 1 kilogram of MDMA, 76.5 grams of hashish and $326,155.00.
[2] These discoveries led to a second general warrant and a wiretap investigation. As a result, Mr. Chen was charged with numerous counts of possession of marijuana, hashish, cocaine, and MDMA for the purpose of trafficking and possession of property obtained by crime.
[3] Mr. Chen has applied to have all of the evidence excluded pursuant to s. 24 of the Charter on the basis that his rights protected by s. 8 of the Charter have been violated. His trial is scheduled to commence on May 11, 2015. I heard this application as a pre-trial application. Both counsel agreed to be bound by my rulings for the purpose of the trial.
[4] This application focuses on the validity of the first general warrant obtained in this investigation. Subsequent warrants and orders were obtained. The parties have agreed that my ruling on this application will determine the admissibility of all of the evidence obtained pursuant to this and all subsequent warrants and orders.
[5] The warrant obtained by the police authorized the covert entry and search of 1 Rean Drive, apartment #1712, in Toronto, believed to be Mr. Chen's residence, and any associated storage units; a silver Mercedes Benz bearing licence plate ARRX 582, believed to be Mr. Chen's car; and any other vehicle believed on reasonable grounds to be used by Mr. Chen in the commission of certain drug offences.
[6] The object of the warrant was to search for evidence of drug trafficking.
The Procedure on the Application
[7] The Information to Obtain the Warrant (ITO) was sworn by Officer Stevenson. His grounds for seeking the warrant relied heavily on information provided to the police by a confidential informant. As a result, the Crown disclosed a redacted version of the ITO to defence counsel together with a draft judicial summary of the redacted portions.
[8] Prior to hearing the application, I was given a copy of the sealed unedited ITO that was before the issuing justice pursuant to the "step six" procedure outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. It has been marked as a sealed exhibit on this application. I reviewed the Crown's editing of the ITO, heard the submissions of Ms. Shemesh, and suggested that some of the redacted portions could be disclosed to the defence without identifying the confidential informant. The Crown reviewed my suggestions with Officer Stevenson and the confidential informant's handler, and ultimately prepared a revised version of the redacted ITO, which was disclosed to the defence. The ITO was further revised to disclose more information. The final revised redacted ITO is marked as Exhibit #4.
[9] I also reviewed the draft judicial summary of the redacted portions of the ITO prepared by Mr. Streeter, and suggested a number of revisions. After discussing the revisions with the police officers and making further submissions, Mr. Streeter agreed that the revised judicial summary could be disclosed to Ms. Shemesh. A final version of the judicial summary was provided to the defence and is marked as Exhibit #3.
[10] Ms. Shemesh applied for leave to cross-examine Officer Stevenson. After the revised redacted ITO and revised judicial summary were provided to Ms. Shemesh, the parties agreed on four areas for cross-examination, and Officer Stevenson testified.
[11] The record before me on the application consisted of the following:
the unredacted ITO that was before the issuing justice, together with the redacted ITO and judicial summary of the redactions,
the search warrant issued on October 25, 2011,
the evidence taken at the preliminary inquiry on April 5 and 12, 2013,
a surveillance photograph of Mr. Chen shown to the confidential informant,
Toronto Police Service surveillance reports from October 11,13, 17, 18 and 19, 2011,
a chart of the evidence discovered from searches conducted pursuant to the warrant, and
the testimony of Officer Brendan Stevenson.
Positions of the Parties
[12] Ms. Shemesh submits that the covert entry and search of Mr. Chen's residence violated his rights protected by s. 8 of the Charter, and as a result, the evidence obtained should be excluded pursuant to s. 24(2) of the Charter. She argues that the justice who issued the search warrant was misled by the ITO. The police did not have reasonable and probable grounds to obtain the warrant because the information provided by the confidential informant was not compelling or corroborated, and there was nothing to indicate that the confidential informant was credible. Furthermore, Ms. Shemesh submits that the ITO contained misleading statements and significant omissions, and did not constitute full, fair and frank disclosure.
[13] Mr. Streeter submits that all of the facts supporting Officer Stevenson's reasonable and probable grounds for belief were set out in the ITO in a full, fair and frank manner, and amply supported the issuance of the warrant. The information provided by the confidential informant was compelling, credible and corroborated, according to Mr. Streeter.
The Standard of Review
[14] The focus of my inquiry as the reviewing court is on whether there was credible and reliable information in the ITO, as amplified on review, that could have permitted the issuing justice to conclude that there were “reasonable and probable grounds” to issue the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. I am not entitled to substitute my view for that of the issuing justice.
The Adequacy of the ITO
[15] When the police rely upon information from a confidential informant as the basis for their reasonable and probable grounds to justify a search, consideration must be given to whether the information from the confidential informant is compelling, credible and corroborated by police investigation. It is the totality of these circumstances that must be considered. Weaknesses in one area may be compensated by strengths in the others: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at p.1168.
Was the Tip Compelling?
[16] The first factor to consider is whether the confidential informant’s information was compelling. How much detail was provided? Was the detail based on first-hand observations or rumour and gossip? Were the details provided widely known to many people? See: R. v. Greaves-Bissesarsingh 2014 ONSC 4900 at para. 35.
[17] The ITO includes background information about the confidential informant, including details of his or her involvement in the drug subculture. Many of the details have been redacted to protect the confidential informant’s identity, but information is set out that would permit the issuing justice to determine the placement of the confidential informant within the drug subculture and assess his or her ability to access the type of information that he or she provided to the police.
[18] The nature of the information provided by the confidential informant contained in the redacted ITO and judicial summary is as follows:
Timing: The redacted information discloses that the handler received information from the confidential informant in 2011. The unredacted ITO provides the specific dates.
Confidential informant’s knowledge of Mr. Chen: Mr. Chen was known to the confidential informant as Dan and was described as male, oriental, medium build, brown hair, late 30’s. The confidential informant identified Mr. Chen from a single photograph shown to him. The unredacted ITO contains information that the confidential informant provided about one of the Mr. Chen's personal connections and the details of an event in Mr. Chen's recent past.
Address: Mr. Chen lives at 1 Rean Drive, apartment 1712. When one walks into the unit, the kitchen is to the right and a couch is to the left.
Vehicle: The confidential informant saw Mr. Chen with a Mercedes Benz key. ARPX is part of the Mr. Chen’s licence plate. Mr. Chen is usually driven around when dealing and possibly uses a car that is not silver.
Criminal behaviour: The confidential informant advises that Mr. Chen traffics in kilograms of cocaine. The unredacted ITO discloses the number of kilograms Mr. Chen traffics.
Information about cocaine: The confidential informant has seen cocaine in Mr. Chen’s apartment. The unredacted ITO discloses the quantity of cocaine the confidential informant saw, and the location in the apartment where it was seen.
[19] It is not possible to outline in any greater detail the nature of the information the confidential informant provided to the police without risking the disclosure of the confidential informant’s identity. A careful review of the original unredacted ITO reveals that the information provided by the confidential informant was reasonably detailed. Some of the information, including the information about the presence of cocaine in Mr. Chen’s apartment, was based on the confidential informant's first-hand observations.
Is the confidential informant credible?
[20] To determine the confidential informant's credibility, I have examined whether the confidential informant has provided reliable information in the past, whether the confidential informant had any motive for providing the information, what the motive was, and whether the confidential informant had a criminal record that included offences of dishonesty.
[21] Most of the details about the confidential informant have been redacted from the ITO disclosed to Mr. Chen. The judicial summary discloses that the following information about the confidential informant was disclosed to the issuing justice:
❏ The confidential informant's criminal record, including the details of one of the convictions.
❏ The benefit the confidential informant hoped to receive in return for providing the information to the police and the fact that no benefit had been offered to the confidential informant at the time the ITO was prepared.
❏ The details of how the confidential informant came into contact with the police.
❏ The information that the confidential informant has provided in the past that resulted in a seizure by the police.
❏ The information that the confidential informant has provided about other high-end cocaine traffickers, including one who is specifically identified as is that person's association with a large cocaine seizure.
[22] Officer Stevenson set out the details that both supported and detracted from the confidential informant's credibility for the issuing justice's information.
[23] There was information in the ITO that detracted from the confidential informant's credibility. However, in my view, there was sufficient information in the ITO for the justice to determine that the confidential informant had some degree of credibility. While not carded, the confidential informant had a history of providing reliable information to the police, having done so on two prior occasions. The police had not promised the confidential informant any benefit in exchange for the information at the time the ITO was prepared. Finally, some aspects of the information provided by the confidential informant were established to be accurate by subsequent police investigation, and none of the information was contradicted by subsequent police investigation, which supports the credibility of the confidential informant.
Was the confidential informant's information corroborated?
[24] The police investigation independently established Mr. Chen's address, physical description, make of car he drove, and licence plate associated with that car. Other than the misidentification of an "R" as a "P" in the licence plate, all of these facts corroborated the information received from the confidential informant. In addition, information provided by the confidential informant about an event in Mr. Chen's recent past was corroborated. This was corroboration of the type referred to in R. v. Caissey 2007 ABCA 380, affirmed on appeal at 2008 SCC 65, [2008] 3 S.C.R. 451 and R. v. Rocha 2012 ONCA 707.
[25] In addition, the information provided by the confidential informant was corroborated by the surveillance conducted by the police on October 19, 2011, the details of which were set out in the ITO. Officer Stevenson testified that the ITO erroneously noted the date of the surveillance as October 18, 2011, when in fact it was October 19, 2011. On that date, police observed Mr. Chen engaged in a suspicious transaction in a parking lot, in which Mr. Chen received a package (believed to be cocaine) from another man. When Mr. Chen arrived at his apartment, he was observed by police to use counter surveillance techniques before removing the package from his car.
[26] Ms. Shemesh submitted that the observations made by the police on October 19, standing alone, were not corroborative of the confidential informant's tip. The package that Mr. Chen received could have been anything. Officers testified at the preliminary hearing that they did not know what was in the package and that they did not see Mr. Picard transfer the package to Mr. Chen. These observations were innocuous without the information from the confidential informant, according to Ms. Shemesh.
[27] This is particularly so, according to Ms. Shemesh, when the court considers the results of the surveillance conducted on October 18, 2011, which were not set out in the ITO. According to the surveillance reports filed on this application, on October 18 Mr. Chen was observed running errands and meeting people for lunch at a restaurant. In Ms. Shemesh's submission, had Officer Stevenson included the details of the surveillance from October 18, the issuing justice may have felt that further investigation was required, particularly given the absence of exigent circumstances and the innocuous nature of the October 19 observations.
[28] I accept that, standing alone, the observations made on October 19 could be seen as innocuous. However, the issuing justice was not required to consider the observations in isolation. He was entitled to decide whether to issue the warrant based on the evidence in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. He was also entitled to draw reasonable inferences from the contents of the ITO. See R. v. Vu 2013 SCC 60 at para. 16 and R. v. Sadikov 2014 ONCA 72 at para. 82. I find that the suspicious nature of the transaction observed by the police on October 19 together with Mr. Chen’s behaviour when he retrieved the package from his car corroborated the information received from the confidential informant.
[29] It is true as Ms. Shemesh submitted that the surveillance did not confirm that Mr. Chen was trafficking in cocaine. However, that is not necessary. As Rosenberg J.A. said in R. v. Rocha, supra at para. 22, "The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required."
[30] Ms. Shemesh also submitted that not all of the details provided by the confidential informant were corroborated. For example, police did not observe Mr. Chen being driven around in a car that was not silver. However, the police are not required to confirm every detail of an informant's tip: R. v. Debot, supra at p. 1172. In addition, nothing alleged by the confidential informant was revealed as false by subsequent police investigation.
[31] I am satisfied that the combination of the reasonably compelling tip together with some independent investigative corroboration and a confidential informant that had previously provided reliable information in the past provided the issuing justice with a sufficient basis upon which he could have granted the search warrant.
Was the disclosure contained in the ITO full, frank and fair?
[32] Anyone seeking an ex parte authorization, such as a warrant, has a legal obligation to make full, fair and frank disclosure of all material facts: R. v. Araujo 2000 SCC 65 at para. 46. Ms. Shemesh submitted that Officer Stevenson failed to meet this obligation in that the ITO contained omissions and inclusions that were designed to paint a picture of Mr. Chen that was not borne out by the facts.
[33] Ms. Shemesh pointed to the following specific details in support of her submission. None of these points viewed either individually or cumulatively, have caused me to conclude that the issuing justice could not have properly authorized the warrant.
❏ Mr. Chen’s criminal record: Mr. Chen's 2002 conviction for possession of a scheduled substance for the purpose of trafficking is noted in paragraphs 30c), 33c) and 37 of the ITO. Officer Stevenson included his belief in the ITO that this corroborates the confidential informant’s information. He testified that he knew whether the subject matter of the 2002 conviction was cocaine or not when he prepared the ITO, but he failed to note it. Ms. Shemesh submitted that this was an unfair omission leaving the issuing justice with the mistaken impression that the prior conviction related to cocaine. While it would have been preferable for Officer Stevenson to include the nature of the substance because he knew it, in my view, the fact that Mr. Chen had previously been convicted of possession of a scheduled substance for the purpose of trafficking was corroborative of the confidential informant’s allegation that Mr. Chen is a drug trafficker.
❏ Marc Picard’s criminal record: In paragraph 36c) Officer Stevenson identified the man who was seen engaged in the suspicious transaction with Mr. Chen in the parking lot as Marc Picard. He noted that Mr. Picard had a criminal record from 2006 for weapons trafficking and other weapons offences. He further set out his belief that people involved in the drug trade are also involved in firearms trafficking and commonly use firearms for security. Officer Stevenson testified that when he prepared the ITO, he knew that Mr. Picard had no drug convictions and that drugs were not involved in the firearm convictions in 2006, but did not include those details in the ITO. According to Ms. Shemesh, the omission of these details was an attempt by the officer to connect drugs to the transaction observed between Mr. Chen and Mr. Picard. The relationship between guns and drugs in this city is unfortunately too well known. In my view, the issuing justice would not have been misled by the omission of these details.
❏ Request to seize firearms and related devices: Ms. Shemesh pointed to this request in paragraph 4d) of the ITO and argued that Officer Stevenson was careless in his drafting. There is no evidence about why the issuing justice was asked to authorize the seizure of firearms, ammunition and other related devices. The warrant was not sought for any firearms or related devices and the ITO disclosed no basis to believe that Mr. Chen possessed any firearms or related devices. The warrant was authorized only in relation to drug offences, and did not authorize the search for firearms or related devices. Mr. Streeter submitted that paragraph 4d) should be excised. Ms. Shemesh agrees, but submitted that it should not have been before the issuing justice in the first place. I agree with Ms. Shemesh that it should not have been before the issuing justice; but it appears to have been disregarded by the justice. I am not satisfied that the request was included to mislead the justice in any way; nor am I satisfied that he was misled. I excised paragraph 4d) for the purposes of determining the adequacy of the ITO.
❏ Omission of the surveillance results from October 18: Ms. Shemesh submitted that Officer Stevenson failed to include the October 18 surveillance results, which showed Mr. Chen doing errands and meeting people for lunch, because it did not advance the case against Mr. Chen. This, in Ms. Shemesh's submission, did not constitute full, frank and fair disclosure. I disagree. Officer Stevenson was not obliged to include every detail of the police investigation: R. v. Araujo, supra. Nothing relevant was observed on October 18. Mr. Chen’s activities on October 18 neither supported nor detracted from Officer Stevenson's grounds to obtain the warrant.
❏ Inclusion of the number of records Mr. Chen has with Toronto Police Service: Officer Stevenson testified that the records include contacts between Mr. Chen and the Toronto Police Service in circumstances where Mr. Chen was the victim of an offence, reported an offence to the police, was investigated, was a suspect or was charged with an offence. The records could include offences with which Mr. Chen was charged, but acquitted. Officer Stevenson testified that he included this statement to indicate to the issuing justice that he had information available to him to investigate who Mr. Chen was. Officer Stevenson had access to the occurrences relevant to the 13 records but did not attach them to the ITO or set out the details. Ms. Shemesh submitted that this statement was included in the ITO to portray Mr. Chen in a certain light, as a person who has had frequent contact with the police. This, in Ms. Shemesh's submission, was unfair and was not frank disclosure. Mr. Streeter submitted that the 13 records were irrelevant and the issuing justice would have realized that they had no evidentiary value.
I agree with Ms. Shemesh that the inclusion of this information is prejudicial and designed to impeach the character of Mr. Chen, and has no probative value. The same finding was made by Justice Melvyn Green in R. v. Herdsman 2012 ONCJ 739 at para. 36. Justice Green referred to the following observation made by Justice Doherty in dissent in the case of R. v. Campbell 2010 ONCA 588 at para. 74: "The criminal record provided information that was potentially probative on the application for the warrant. In my view, the computer list of other "contacts" with the police had no probative value." Unless the underlying detail of a "record" or "contact" with the police is provided and has some probative value, a bald recitation of the number of records or contacts should not be included in an ITO. I have excised the first sentence of paragraph 33d), which sets out the number of records Mr. Chen has with the police in my consideration of the adequacy of the ITO.
[34] As I have already indicated, none of these points viewed either individually or cumulatively, have caused me to conclude that the issuing justice could not have properly authorized the warrant.
Conclusion
[35] In conclusion, there was a sufficient and proper basis on which the issuing justice could have issued the general warrant. There is therefore no violation of Mr. Chen's rights protected by s. 8 of the Charter. There is thus no need to consider whether the evidence should be excluded pursuant to s. 24(2). Mr. Chen's application is dismissed.
[36] I would like to thank Ms. Shemesh and Mr. Streeter for their helpful and able submissions.
Corrick J.
Released: May 5, 2015
CITATION: R. v. Chen, 2015 ONSC 2930
COURT FILE NO.: CR-13-90000328-0000
DATE: 20150505
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
DANIEL CHEN
REASONS FOR RULING
Corrick J.
Released: May 5, 2015