CITATION: R. v. Guindon, et al, 2015 ONSC 4028
OSHAWA COURT FILE NO.: 13543/14
DATE: 2015-06-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HARLEY GUINDON, CHRISTOPHER GONDER, ROBERT PAMMETT JUNIOR, WALLACE GROVES and ANDREW BRYAN
Applicants
Sarah Egan and James Clark, for the Respondent (Crown)
Alan Richter, for Harley Guindon; Ramona Abraham, for Christopher Gonder; Thomas Balka, for Robert Pammett Junior; Stephen Proudlove, for Wallace Groves; Andrew Bryan, self-represented
HEARD: June 15, 16, 17, 18, 25 and 26, 2015
BIRD J.
RULING ON THE SECTION 8 APPLICATION OF HARLEY GUINDON
Introduction
[1] The Applicant, Harley Guindon, and his co-accused are charged with several drug related offences which are alleged to have occurred between March and August of 2012. Pursuant to Section 24(2) of the Charter, the Applicant seeks to exclude evidence obtained from three Dialled Number Recorder (DNR) and tracking warrants issued by Devlin J. in January and February of 2012. He submits these warrants were obtained in contravention of his Section 8 Charter rights. The Applicant attacks the warrants on the basis that the information provided by the affiant did not amount to reasonable grounds to suspect that an offence had been committed. Specifically, he asserts that the confidential source information was not confirmed, the information from the informants was inconsistent, the informant pool was tainted due to the conduct of three Durham Regional police officers, the affiant overstated some aspects of the investigation and there was non-disclosure of material facts all of which misled the issuing justice. As a result of these defects, the Applicant argues that the warrants ought not to have been issued.
General Legal Principles on a Review
[2] The law in relation to the standard to be applied by a reviewing judge is well established. The proper standard of review is: based on the record before the authorizing judge, as amplified by the record before the reviewing judge, could the authorizing judge have granted the authorization. The reviewing judge does not conduct a de novo hearing nor substitute his or her view for that of the authorizing judge. Put another way, the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there was no basis for the authorization (R v. Garofoli 1990 CanLII 52 (SCC), [1990] S.C.J. No 115 at paragraphs 55, 56 and 62). Warrants are presumed to be valid and the Applicant bears the burden of demonstrating that the information to obtain (ITO) was insufficient (R v. Shin 2015 ONCA 189, [2015] O.J. No. 1364 (Ont. C.A.) at paragraph 78).
[3] It must also be remembered that a Section 8 application is not a trial. It is an application in relation to the admissibility of evidence. As a result, it is not intended to test the merits of any of the allegations in respect of the offences. The truth of the allegations is to be tested at the trial proper (R v. Pires 2005 SCC 66, [2005] S.C.J. No. 67 at paragraph 30). This is an important distinction. The ITO need not disclose reasonable and probable grounds to charge the Applicant with any of the named offences (R v. Ebanks 2009 ONCA 851, [2009] O.J. No. 5168 at paragraph 33). It is sufficient, in the case of DNR and tracking warrants, if it provides reasonable grounds to suspect that evidence of an offence could be obtained.
[4] Furthermore, as directed by our Court of Appeal in Spackman, I must review the affidavit as a whole, not in a piecemeal fashion. I am also obliged to accept the ability of the authorizing judge to draw reasonable inferences from the contents of the affidavit (R v. Spackman 2012 ONCA 905, [2012] O.J. No. 6127 at paragraph 223).
The Existence of Reasonable Suspicion
[5] The Supreme Court of Canada defined the term “reasonable suspicion” in R v. Kang-Brown 2008 SCC 18, [2008] S.C.J. No. 18 as an expectation that a targeted individual is possibly engaged in some criminal activity. It is a lower standard that reasonable grounds to believe but more than a mere suspicion. A reasonable suspicion must also be more than the subjective belief of the affiant. It must be supported by objectively discernible facts. The Applicant takes no issue with the fact that the affiant, Detective Constable Price, had a subjective belief that he was involved in drug trafficking. However, he submits that the frailties of the information from the confidential informants and the paucity of any meaningful confirmatory evidence cause the ITO of Detective Constable Price to fall short of providing the reliable, objective facts necessary to constitute reasonable suspicion.
[6] It is helpful in my analysis on the issue of whether a reasonable suspicion existed to summarize the information the affiant had by category.
Confidential Source Information:
[7] In support of the first two search warrant applications, Detective Constable Price relied upon four different confidential informants, all of whom had handlers employed by the Durham Regional Police Service. All of the informants were involved in the drug sub-culture and provided information in exchange for financial compensation and/or consideration in relation to criminal charges. Three of the four informants have criminal records.
[8] Confidential Human Source #1 (CHS1) provided information directly to the affiant who happened to be his or her handler in May and June of 2011. CHS1 provided information that was based on first-hand knowledge and also information which s/he received from a third party. The identity of the third party is not known. Confidential Human Source #2 (CHS2) provided information to his or her handler in November of 2011 that was based on first-hand knowledge. Confidential Human Source #3 (CHS3) provided some minimal information to his or her handler in May and June of 2011 that appears to be based on the observations of a third party or speculation. Confidential Human Source #4 (CHS4) gave information to his or her handler in November of 2011 based on first-hand knowledge.
[9] The Applicant raises concerns about the reliability of all of the informants and the failure of the police to take any meaningful steps to corroborate the information they provided. Generally speaking, the information from all of the informants is fairly non-specific and not particularly detailed. The police conducted some surveillance on Mr. Guindon from May of 2011 onwards but did not conduct any on the other targets of the warrants (Bradley Cox and Gordon Taylor). The Applicant also points out that some of the information provided was not based on first-hand knowledge and therefore the reliability of the source is unknown. The affiant set out the background, to the extent he could without compromising privilege, of each informant to allow for an assessment of their reliability. However, there is no such information about the third parties. There is nothing in the ITO that provides any information that could assist in evaluating the credibility of these people. As a result, caution must be exercised when considering information that was not based on the first-hand knowledge of an informant.
The Applicant also strongly argues that the behaviour of three Durham Regional Police officers may have tainted the informant pool, thereby rendering any information provided about him to be suspect. Constable Ebdon testified on this application and I had the opportunity to watch a video of his interaction with Bradley Cox at 190 Celina Street, which was a known crack house in 2011. This video was obtained from a surveillance camera in the area and ultimately made its way into the media. When it did, Constable Ebdon was disciplined for his conduct, which can only be described as reprehensible.
On his evidence, this was the first time Constable Ebdon had met Mr. Cox. Based on what was shown on the video, Mr. Cox did nothing to give rise to any officer safety concerns. He was escorted out of the house by Constable Ebdon with another man who is believed to be Darrell O’Hanley. The conduct of Constable Ebdon from that point onwards included a threat to punch Mr. Cox, a pat down search that was clearly in violation of Mr. Cox’s Charter rights and threats to falsely accuse Mr. Cox of criminal offences including assault and threatening. Constable Ebdon got so close to Mr. Cox at one point that Mr. Cox had to step backwards.
The officer told Mr. Cox that he was going to explain to him “how he works” which included hurting people and making cocaine appear. Towards the end of their interaction, Constable Ebdon gave Mr. Cox advice on how he should behave the next time they saw each other which included telling Mr. Cox to remember his face and to show him respect. Mr. Cox was advised to say “yes sir, no sir, three bags full, whatever the fuck you want, can I suck your cock sir, can I do a backflip”.
While he was dealing with Mr. Cox, the officer used the police radio on his vest to call communications. He can be heard saying “we think he is associated to Harley Guindon”. It is not clear who Constable Ebdon was referring to when he used the term “we”. When Mr. Cox attempted to ask the officer why he was being treated in the manner in which he was, Constable Ebdon told him that it was because of who he associated with, which I find to be a reference to Harley Guindon.
Constable Ebdon then directed Mr. Cox to return to the house and directed his attention at the other man. He removed the man’s hat and asked him if he knew Harley. Constable Ebdon had no recollection of doing so when he testified but agreed that he would have been referring to Harley Guindon.
Constables Gejewski and Ledwidge were present and stood by passively observing at least some of Constable Ebdon’s criminal behaviour. While these two officers were not directly involved in the interactions with Mr. Cox and Mr. O’Hanley, they were certainly close enough to hear some of the threats and other completely inappropriate comments made by Constable Ebdon. The failure of these two officers to intervene or take any action at all is also inexcusable.
In his evidence, Constable Ebdon showed a staggering lack of appreciation for the seriousness of his conduct. Perhaps that is not surprising in light of the fact that the only penalty that was imposed on him by the Durham Regional Police Service was the loss of 24 hours pay. The incident was not dealt with in a manner that makes it the subject of a McNeil report, which is concerning.
When Constable Ebdon testified initially on this application, he said that he did not make any notes or create any reports in relation to this incident. He was unable to provide the date on which it occurred but believed it was in November of 2011. Neither Constable Gejewksi nor Ledwidge made any notes. Based on the initial testimony given by Constable Ebdon and Detective Constable Price, the evidence supported the position the affiant could not have known about the interaction with Mr. Cox and was therefore unable to include it in the ITO. Submissions were completed on that basis.
On Saturday June 20, 2015, the Crown became aware that there was a police report authored by Constable Ebdon about the incident with Mr. Cox that was captured on video. This was disclosed to the defence for the first time on Sunday or Monday. This report revealed that the interaction occurred on December 6, 2011.
Both the Crown and defence agreed that this new development required both officers to attend for further cross-examination which they did. On behalf of the Applicant, Mr. Richter had a subpoena served upon Constable Ebdon which required him to bring all of his notes, reports and any other relevant documents in relation to his dealings with Mr. Cox. When Constable Ebdon attended court on June 26, 2015 in response to the subpoena, he produced another report dated December 9, 2011 detailing a second interaction with Mr. Cox. The defence was provided with that report for the first time that day.
The December 6 report does not bear any resemblance to what was captured on video. Constable Ebdon described Mr. Cox as being difficult to deal with but ultimately calming down and promising to behave more appropriately in the future. The report alleged that Mr. Cox voluntarily emptied his own pockets to prove to the officer that he did not have any drugs or weapons on his person. This is not what happened at all. The report was unquestionably a work of fiction by Constable Ebdon.
The December 9, 2011 report portrays Mr. Cox as being similarly cooperative, submitting to a search when he was not required too. This incident was not captured on video so the only evidence about what did or did not happen comes from Constable Ebdon, who is not a credible or reliable witness. The officer did testify that he “asserted himself” with Mr. Cox when he dealt with him on December 9. Given the officer’s conduct on December 6, it is likely that he treated Mr. Cox with similar distain and disregard three days later. Notably, on both dates Mr. Cox was searched and was not found to be in possession of anything consistent with drug activity.
In his evidence, Constable Ebdon attempted to justify his behaviour on December 6, 2011 by alleging that Mr. Cox had shown signs of aggression in the house and made threats to the officer’s family. Of course, none of this was captured on video. It is telling that during the time they were on video Constable Ebdon said nothing to Mr. Cox about the threats that had allegedly been made. If, in fact, the officer’s family had been threatened, one would expect that Constable Ebdon would have made detailed notes about this to document the perceived risk. There was nothing in the report he completed about Mr. Cox threatening him or his family in any way. In addition, if threats were made that is something that should have been reported to a supervisor so that any potential risk to the officer and his family could be evaluated. Instead, according to Constable Ebdon, he chose to deal with it by “getting into Mr. Cox’s head” and talking to him in street language. I find that Constable Ebdon’s evidence in this regard was a poor attempt to justify that which is unjustifiable.
When he testified Constable Ebdon claimed to have no interest in Harley Guindon whatsoever. I do not accept that evidence in light of the fact that he told police communications that he believed Mr. Cox was associated with Mr. Guindon, he told Mr. Cox that he was being treated so poorly because of who he was associated with and asked Mr. O’Hanley about Mr. Guindon. Constable Ebdon made it clear during the course of his dealings with Mr. Cox and Mr. O’Hanley that he was very interested in the activities of Harley Guindon. It was obvious that Constable Ebdon was attempting to gather information about Mr. Guindon for reasons that are not apparent. Constable Ebdon denied being asked to do so by any other officer. However, he had never met Mr. Guindon and could provide no reasonable explanation for his obvious interest in him.
Further adding to Constable Ebdon’s credibility issues was his evidence on June 26, 2015 about discussions with Constables Ledwidge and Gejewski in relation to the December 6, 2011 incident. When he testified initially, Constable Ebdon categorically denied speaking with his fellow officers about what had transpired between himself and Mr. Cox. It was suggested to him that the other two officers were obviously aware of the presence of a camera at 190 Celina Street and spoke with him later to alert him to that. Constable Ebdon denied that happened. His evidence on June 26, 2015 on this point was quite different. He testified that Constables Ledwidge and Gejewski did speak to him to give him the “heads-up” about the video. In addition, the existence of a video was widely known to uniformed DRPS officers by January of 2012. The Applicant apparently had a copy of the video and told officers who conducted traffic stops of him about it. Constable Ebdon testified on June 26 that these officers also spoke to him to let him know this was occurring. He did not offer any explanation for this complete reversal of his evidence.
As noted above, 190 Celina Street was a known crack house in 2011. There were other people present in the home on December 6 that would not have seen what occurred outside but may very well have been told of it when Mr. Cox and Mr. O’Hanley returned inside. When he was speaking to Mr. Cox, Constable Ebdon explained that this was the way he worked, referring to hurting people and making cocaine appear if they did not behave as he expected. He gave Mr. Cox advice on how to act when they encountered each other in the future and threatened violence if he did not comply. These comments suggest that the conduct that was captured on video was the modus operandi of Constable Ebdon rather than an isolated occurrence. In addition, the Applicant points out that it would be remarkable bad luck for Constable Ebdon to be captured on video behaving this way if it were the only time in his life he had done so. As a result, the Applicant submits that people in the drug sub-culture in Oshawa, which is the very pool the informants came from, may have provided false information implicating him based on pressure from Constable Ebdon.
[10] However, it must be remembered that the onus is on the Applicant on this application. There is simply no evidence about how far-reaching the conduct of Constable Ebdon was. Even if I were satisfied that the Celina Street incident was not an isolated one, there is no evidence that any of the four informants were influenced by, or even aware of it. Of course, the Applicant does not know the identity of the informants so he is not able to investigate this issue or call evidence on it.
[11] The Applicant submits that when he did see the video, Detective Constable Price should have taken steps to investigate whether the informants he relied upon were aware of and influenced by the conduct of Constable Ebdon. I agree. Detective Constable Price testified that he didn’t believe that Constable Ebdon’s conduct had any relevance to his investigation into Harley Guindon. He further stated that he was certain, based on his experience, that if any of the informants had been intimidated by Constable Ebdon they would have reported it to their handlers who would in turn have advised him. I accept that this was the affiant’s belief, but it did not relieve him of the obligation to make appropriate inquiries. He should have contacted each handler and asked them to speak with their informants to put to rest any possible concern about tainting. Detective Constable Price should also have asked his informant directly about any contact with Constable Ebdon.
[12] The fact that the affiant doesn’t understand the potential relevance of the behaviour of Constable Ebdon to this investigation is a cause for concern and will be addressed in more detail on the issue of material non-disclosure. When he testified, Detective Constable Price was clearly uncomfortable commenting on the video and appeared loathe to be too critical of his fellow officer. However, as an affiant he has an obligation to the justice system that is an ongoing one and that should have prompted him to conduct some inquiries after learning of the video.
[13] Notwithstanding these concerns, I am left with no evidence to support the Applicant’s position that the informant pool was tainted. CHS1 provided his/her information in May and June of 2011, prior to the Celina Street incident, as did CHS3. Without evidence about the reach of Constable Ebdon’s conduct and any evidence that these specific informants knew about it, it would be purely speculative to find that the confidential informant information in this case was tainted.
[14] I must therefore analyse the information provided by the informants in accordance with the decision of the Supreme Court of Canada in Debot. There are 3 questions that must be asked: was the information compelling, was it confirmed and was the source credible (R v. Debot 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118 at paragraph 53). With respect to corroboration, it is not necessary for the police to confirm every detail of the informer’s information (Debot at paragraph 63) nor is it necessary to have proof that the informer is telling the truth about the alleged criminal activity (R v. Caissey 2007 ABCA 380 at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66). However, where it is impossible to assess the credibility of the source, a higher level of verification may be required. The reliability of any informer information must be assessed in the “totality of the circumstances” (Garofoli at paragraph 68).
[15] When information provided by a confidential source is not based on first-hand knowledge increased scrutiny of it is required. The important distinction between direct observations made by the source and information from an unknown source was recognized by the Ontario Court of Appeal in Rocha (R v. Rocha 2012 ONCA 707, [2012] O.J. No. 4991 at paragraph 26). In Lewis, Justice Doherty stated that when information is received from an informer who does not disclose how he or she came to know about the alleged activity, the value of the tip depends on the nature of the information and the extent to which it can be confirmed (R v. Lewis 1998 CanLII 7116 (ON CA), [1998] O.J. No. 376 (Ont. C.A.) at page 5). All of the source information has to be assessed in the context of the affidavit as a whole to determine whether it was compelling, credible and corroborated.
[16] This was the approach taken by Justice Dambrot in Riley. He acknowledged that it is not unusual for affiants to include information from confidential informers without disclosing the source of their knowledge. Dambrot J. accepted that this affects the weight that may be given to the information but held that it does not result in it automatically having no value. The value of the information can only be assessed upon an examination of all of the circumstances (R v. Riley 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738 (Ont. S.C.J.) at paragraphs 121 and 125). Justice Nordheimer followed this approach in Lucas and found that information from informers with no established track record, which included some that was not sourced, still had some measure of reliability to it based on the corroboration that was available (R v. Lucas 2009 CanLII 27837 (ON SC), [2009] O.J. No. 2252 (Ont. S.C.J.) at paragraphs 26 and 27).
Information from CHS1:
[17] In May of 2011, CHS1 provided the affiant with information from a third party that Mr. Guindon was actively dealing cocaine, used people to deal drugs for him and rarely touched the product. The third party also claimed to have seen Mr. Guindon in a possession of a handgun within seven days of providing the information to CHS1. Based on personal knowledge, CHS1 told the affiant in May of 2011 that Mr. Guindon was still dealing cocaine, was seen in possession of cocaine and OxyContin pills that he was selling and was working with a male who had “Kane” tattooed on his neck. In June of 2011, CHS1 provided further information about someone he knew as “G”. He said that G was selling cocaine at a specific gas station in Bowmanville and was associated to a particular address.
[18] The information from the third party appears to be inconsistent with what CHS1 told the affiant with respect to Mr. Guindon handling the drugs. Although it did not appear in the body of the ITO, the affiant testified that the third party also told CHS1 that Mr. Guindon obtained his drugs in Hamilton. Surveillance was done on Mr. Guindon on several days in May and June of 2011 and he was never observed in Hamilton. Detective Constable Price checked a police database that gave him access to the records of the Hamilton Police Service and was unable to find any document that placed Mr. Guindon in Hamilton. He was therefore unable to confirm that Mr. Guindon had ever been in Hamilton. In light of the fact that there is virtually no information about the reliability of the third party and considering the weakness in the information, I place no weight on it.
[19] The information CHS1 provided about “G” raises concerns about the informant’s reliability. The affiant learned from an officer who worked in Bowmanville that Gordon Taylor is known as “G”. The police made no effort to conduct any surveillance on Mr. Taylor to see if he associated with Mr. Guindon or Mr. Cox or whether he engaged in any activity consistent with drug dealing. At one point in the investigation the police realized that the person they thought was Gordon Taylor was actually someone named Andrew Robinson. However, Gordon Taylor did exist as the police had a date of birth and address for him. During the course of the surveillance they conducted on Mr. Guindon they never saw him with Mr. Taylor. Therefore, the information from CHS1 regarding “G” was never confirmed and cannot be relied on.
[20] The remaining information provided by CHS1 is very general in nature but suggests that the informant saw Mr. Guindon in possession of cocaine and OxyContin. This information cannot be characterized as compelling given its lack of detail. On its own, it would not be sufficient to justify the warrants, but it is entitled to some weight and must be considered along with all of the other information.
Information from CHS2:
[23] In November of 2011, CHS2 told his or her handler that Mr. Guindon and Mr. Cox were dealing crack cocaine and heroin together. S/he advised that Mr. Cox dealt for Mr. Guindon and also used crack cocaine heavily. Further, CHS2 said that Mr. Guindon was supplying Tammy Sullivan with crack cocaine and heroin and that Ms. Sullivan sold everything including crack cocaine, heroin and pills. CSH2 said that Mr. Guindon and Mr. Cox were fronting a lot of people and there was a fear that these people would be shot if they didn’t pay them back. CHS2 also told his or her handler that Mr. Guindon drove a really nice Mustang. Police records and observations confirmed that Mr. Guindon did drive a Mustang but this is a fact that would be known to many people who knew him and has very little corroborative value.
[24] The Applicant submits that CHS2 is inconsistent with CHS1 about the type of drugs Mr. Guindon was dealing. I accept that generally when people in the drug culture refer to cocaine they are speaking of powder cocaine and the term crack is used to refer to crack cocaine. However, the information from CHS2 was provided five to six months after that from CHS1 and drug trafficking can be a dynamic business. In addition, there is no evidence that drug traffickers restrict themselves to one substance. The ITO does not have to precisely identify the details of the criminal offences that are being investigated. As stated by Justice Nordheimer in Lucas, “it is not a fishing expedition to conduct an investigation where the general presence of criminal activity is known but the precise details of individual occurrences are not” (at paragraph 39). While Nordheimer J. was dealing with a case that involved an investigation into a street gang, similar issues arise in the investigation of multiple people believed to be involved in drug trafficking.
[25] The police did not conduct surveillance on Mr. Cox and therefore there is no evidence that he was engaged in any activity consistent with drug dealing in 2011. On the two occasions Mr. Cox was searched by Constable Ebdon he was not found to be in possession of any illegal substances or drug paraphernalia. There was information included in the ITO confirming the fact that Mr. Cox and Mr. Guindon were associates and spent time together which is some corroboration of CHS2’s statements.
[26] Although there is no reference to it in the ITO, the police did attend at Ms. Sullivan’s home prior to the first warrant being issued. There is no evidence to suggest that they found anything to confirm that Ms. Sullivan was involved in the drug trade. In the absence of any reference to this, the issuing justice would have proceeded on the basis that there was no confirmation in relation to the Tammy Sullivan assertion by CHS2. The Ontario Court of Appeal made this point in R v. Nguyen 2011 ONCA 465, [2011] O.J. No. 2787 stating that the absence of a reference to something will lead to the common sense inference that it was not seen, heard or done (at paragraph 50). The failure of the affiant to make any reference to the police attendance at Ms. Sullivan’s home does raise a concern about the thoroughness of the background work he did in preparation of the ITO’s. This will be addressed later in dealing with omissions generally. As it relates to CHS2, the information provided by him or her about Ms. Sullivan must be treated as being uncorroborated.
[27] As with CHS2, the information about Mr. Guindon’s alleged drug trafficking activities cannot be described as compelling given its general nature. However, it is entitled to some weight and must be considered along with all of the other material contained in the ITO.
Information from CHS3:
[28] CHS3 provided information to his or her handler in May and June of 2011 about Gordon Taylor and an alleged connection to Mr. Guindon. The informant advised that Mr. Guindon was supplying cocaine to Mr. Taylor. However, CHS3 also said that s/he hadn’t seen this happen but instead was relying on the fact that the quality of Mr. Taylor’s cocaine had improved since Mr. Guindon was released from the penitentiary. CHS3 told his or her handler that Mr. Guindon and Mr. Cox were associates. I place no weight at all on any information from CHS3. The police investigation failed to confirm any association between Mr. Guindon and Mr. Taylor and the statement about Mr. Guindon supplying Mr. Taylor with cocaine appears to be speculation, at best.
Information from CHS4:
[29] In November of 2011, CHS4 told his or her handler that Mr. Guindon was dealing heroin and was working with Mr. Cox to deal drugs. The informant also provided Mr. Guindon’s cellular phone number and advised that he drove a Mustang. The fact that CHS4 knew Mr. Guindon’s cellular phone number suggests that s/he had personal knowledge of him. The information about the drug activity was fairly general and therefore cannot be described as compelling. It is consistent with what CHS2 said and both informants provided their information in the same month.
Physical Surveillance:
[30] The police conducted some physical surveillance of Mr. Guindon from May of 2011 onwards. It was sporadic in nature. On only one occasion did the police observe Mr. Guindon engage in any activity that could be characterized as suspicious. On December 6, 2011 Mr. Guindon was followed to the parking lot of a hotel in Bowmanville, which is located in an area known for drug trafficking. Police observed an unknown person approach Mr. Guindon’s car and walk away within two minutes. Mr. Guindon then left the area.
[31] After summarizing this information, which he read in a surveillance report, the affiant stated that it was his belief that Mr. Guindon was in that area for the purpose of conducting a drug transaction. As further support for his belief, the affiant referred to the fact that Mr. Taylor frequently dealt drugs in that exact area and that an associate of Mr. Taylor’s was in the area at the time. I place no weight on this reference to Mr. Taylor in light of all of the inconsistencies surrounding him and the complete lack of evidence connecting him to Mr. Guindon.
[32] However, the conclusion of the affiant that Mr. Guindon may have completed a drug transaction in the hotel parking lot is a reasonable one in the circumstances. This is the type of conduct that has been viewed as objectively supporting reasonable grounds to believe an offence has been committed resulting in an arrest for trafficking in a controlled substance: R v. Italiano, 2015 ONCA 179 and R v. Anang, 2015 ONSC 3453. Once again, this piece of information must be considered in the context of the ITO as a whole.
Background Information about the Targets:
[33] The affiant set out the criminal histories of all three targets in the body of the ITO. Mr. Guindon has a criminal record that includes four drug related convictions between 2004 and 2006. In addition, he was affiliated with the Hells Angels, holding the rank of a “Hang Around”. Detective Constable Price relied on information from an officer with the Durham Regional Police Biker Enforcement Unit who advised that Hang Arounds may be involved in drug trafficking. A police report also disclosed that in November of 2011 Mr. Guindon was inside the home at 190 Celina Street for approximately ten minutes. This home was known by the police at the time to be a crack house. Mr. Cox also has a criminal record that includes several drug related entries.
[34] The criminal history of targets of a police investigation may be relevant to the reasonableness of an affiant’s belief that they are currently engaged in criminal activity. The Court in Debot dealt with the argument that a person’s reputation should not be used to buttress otherwise insufficient grounds to search. Justice Wilson could not accept the proposition that the past activities of a suspect are irrelevant, provided they relate to the investigation at hand (Debot at paragraphs 57 and 58). The same issue was considered by the British Columbia Court of Appeal in R v. Della Penna 2012 BCCA 3, [2012] B.C.J. No. 11. The Court found that the inclusion of information about prior criminal activity was useful in assessing the credibility of the affiant’s beliefs as disclosed in the affidavit (at paragraph 37).
[35] The fact that both Mr. Cox and Mr. Guindon had a history of involvement with the drug trade was consistent with the information from the confidential informants that they were actively dealing drugs in 2011. Clearly, a prior criminal history for a related offence cannot be sufficient on its own to justify warrants or Part VI authorizations. If that were the case, anyone who has been convicted of a criminal offence would have virtually no protection under Section 8 of the Charter. However, it is a piece of information that can be considered in the context of an ITO as a whole and which can be corroborative of other material facts.
Weaknesses in the ITO:
[36] In addition to concerns about the reliability and the lack of corroboration with respect to the informants, the Applicant submitted that the affiant overstated certain things and omitted relevant information. Specifically, while the affiant detailed Mr. Guindon’s criminal history and affiliation with the Hells Angels, he failed to include the fact that he was working full-time. The Applicant asserts that the affiant was attempting to portray him as a professional drug dealer rather than a hard-working family man. In the interest of being full, frank and fair, the affiant should have included information about Mr. Guindon’s employment. There is nothing in the ITO to suggest that the Applicant had a lawful source of income which may make it tempting to conclude that he was supporting himself through criminal activity. However, the fact that a person is gainfully employed does not mean that he is not also engaged in criminal activity. The two are not mutually exclusive. Even if the fact that the Applicant was employed had been included it would not have detracted from the evidence that was consistent with an involvement in drug trafficking.
[37] The Applicant also submits that the affiant misled the issuing justice with respect to attempts by the police to locate him in December of 2011. I agree that the paragraph that dealt with this issue left the impression that the police were looking for the Applicant for the entire month and could not find him. In reality, they made no attempt to conduct surveillance on him after December 10, 2011. This portion of the ITO should have made that clear, but it was not relevant to the affiant’s grounds as there was no requirement of investigative necessity.
[38] With respect to the second warrant, the affiant included a summary of surveillance that was conducted on the Applicant on January 26, 2012 when he went to several addresses in Peterborough and two in Lindsay. The affiant broadly characterized all of the locations as being associated to individuals involved in drug trafficking. That was an overstatement as two of the homes belonged to Mr. Guindon’s family members and at least one address may not have existed. In addition, some of the locations appear to consist of several apartments and the police did not see which one the Applicant entered. The value of this information is very limited and was overstated by the affiant. The affiant also stated that the Applicant engaged in counter-surveillance techniques on this occasion. This assertion is not supported by the surveillance report completed by the officers who conducted observations of the Applicant.
As noted above, the affiant did not mention the police attendance at Tammy Sullivan’s home even though it would have generated a report that would have been available for his review on the police computer system. Detective Constable Price made it clear in his evidence that he considered Tammy Sullivan to be a lower level drug dealer than the Applicant and therefore unworthy of his time. While the police are entitled to prioritize their investigative resources, the affiant should have conducted checks on Tammy Sullivan to see if the information provided by CHS2 about her could be corroborated. If Detective Constable Price had conducted a thorough search of the police records he undoubtedly would have learned that other officers had attended her home. He should have disclosed the presence or absence of any indicia of drug use or trafficking, as observed by those officers. A complete lack of any indicia of involvement with drugs may have detracted from the reliability of CHS2’s information. The affiant’s failure to conduct checks in relation to Ms. Sullivan to test the reliability of the informant’s information raises concerns about his diligence and the thoroughness of his background work.
[39] By far the largest problem with the ITO’s is the complete failure of the affiant to refer to Constable Ebdon’s interactions with Bradley Cox. The two recently disclosed reports raise significant concerns in relation to both Constable Ebdon and Detective Constable Price.
[43] The Crown fairly makes no attempt to defend the conduct of Constable Ebdon. It would be futile to do so. The evidence establishes that Constable Ebdon committed several criminal offences in the course of his duties. He has no appreciation for the seriousness of his conduct and continues to patrol the streets of Durham. Conduct such as that exhibited by this officer has no place in our society and it must be condemned by the Court. However, Constable Ebdon was not one of the investigators on Project Kingfisher. Nothing that he did was relied upon to establish any of the grounds for the warrants in question.
[45] The real issue that arises on this application is the failure of Detective Constable Price to include any reference to Constable Ebdon’s interactions with Bradley Cox in the ITO’s. The Applicant alleges that this amounts to material non-disclosure. The duties of an affiant are clear. An affiant is required to make full, frank and fair disclosure of all material facts.
[46] Detective Constable Price had full access to the police computer system such that he could have been aware of all police contact with the three targets of the warrants. He acknowledged in his ITO’s that he did run the names of each target in the police database. This would have resulted in a list of records coming up which the affiant would then have been able to access. Detective Price did run Bradley Cox’s name, which would have resulted in both of Constable Ebdon’s reports coming up on the computer. The officer testified that despite this, he did not read the December 6, 2011 report until it was discovered on June 20, 2015. He gave no evidence in relation to the December 9, 2011 report because the Applicant was not made aware of it until after Detective Constable Price had testified for the second time. There is no doubt that this report would also have come up on the computer during the search of Mr. Cox’s name.
[47] When asked to explain how he could not have known about the December 6, 2011 report, the affiant testified that he did not read all of the reports in relation to the targets. He did not keep a list of the reports he did read, nor did he keep copies of them. There is no record of how many reports he reviewed. Detective Constable Price said that he only included reports in the ITO’s that were relevant to the investigation. That begs the question of how he determined what was relevant without reading all of the reports. He had no answer for this.
[48] It is apparent that Detective Price took a short-cut, opening only select reports and ignoring others. There is no evidence as to how many reports existed in relation to each target, how many the affiant reviewed and how many he ignored. Nor is there any evidence about what was in the unread reports. It is possible that they contained information that may have contradicted other material in the ITO’s. The Crown submitted that an affiant cannot be expected to review every piece of paper in relation to every target. These warrants involved only three targets so a thorough review of each of their backgrounds would not be onerous. In addition, the reports authored by Constable Ebdon were extremely close in time to the preparation of the warrants. While it may not be realistic to expect an affiant to read reports that date back decades, these reports were only weeks old. The documents are not lengthy and can easily be perused in one or two minutes. There is simply no acceptable explanation for the affiant’s failure to review all recent police documents in relation to the three targets. Detective Constable Price’s failure to do so demonstrates a lack of understanding of his duties as an affiant and a willingness to sacrifice thoroughness for expediency.
[49] Compounding this issue is the fact that by January of 2012 rumours were swirling among members of the DRPS about the Cox video. The Applicant had made it known to members of the DRPS that he was in possession of a video showing police misconduct and it was widely known that it involved Constable Ebdon and Mr. Cox. Detective Constable Price acknowledged that he may have heard of its existence in January of 2012. This means that prior to swearing the ITO’s for the second and third warrants (and possibly the first which was sworn on January 17, 2012), the affiant was aware that there was a video capturing discreditable conduct by a police officer in relation to one of the targets of his investigation. The affiant did nothing to look into the matter. He should have taken pro-active steps to find out whether this incident had any impact on his investigation. At the very least, Detective Constable Price should have gone back to the computer system to search for any reports involving Constable Ebdon and Bradley Cox. Had he done so, the two December 2011 reports would have been easily found.
[50] When he testified at the preliminary hearing in September of 2013, Detective Constable Price was asked about checks he conducted after viewing the video. He testified that he queried the names of both the Applicant and Bradley Cox in the police database. He then looked at who the author of each report was. The two reports authored by Constable Ebdon in December of 2011 have his name and badge number on them. Yet, Constable Price testified at the preliminary hearing that he was not aware of any reports or street checks that were generated by Constable Ebdon in relation to either the Applicant or Bradley Cox. There is no question that inputting Mr. Cox’s name into the police database would have resulted in the two reports by Constable Ebdon appearing. It would have been obvious to Detective Constable Price immediately that Constable Ebdon had had some contact with Mr. Cox shortly before the warrants were issued. His testimony at the preliminary hearing cannot be reconciled with the existence of the two reports created by Constable Ebdon in December of 2011.
[51] The Applicant submits that the conduct of Officers Ebdon, Gejewski, Ledwidge and Price demonstrates a concerted attempt by the police to hide evidence about the December 6, 2011 incident. Detective Constable Price denies being part of any cover-up. However, it is beyond comprehension how these two reports only came to light at such a late stage in the proceedings. Based on Detective Constable Price’s preliminary hearing evidence, he would have known about these reports prior to September of 2013.
[52] There is no question that these two reports should have been included in the ITO’s. The authorizing judge should have been made aware of the conduct of Constable Ebdon in relation to one of the targets. The affiant also ought to have disclosed the fact that when he was searched on two occasions in December of 2011, Mr. Cox was not found in possession of any illegal substances or drug paraphernalia as that information tends to detract from the statement of CHS2 that he was heavily using crack cocaine.
The aforementioned shortcomings in the ITO’s are significant and demonstrate a lack of appreciation by Detective Constable Price of the role of an affiant and the diligence that must be exercised. His ITO’s contained overstatements and omitted relevant information that was readily available to him. In his evidence, the officer admitted that he was not familiar with the Debot criteria. This is consistent with his failure to take appropriate steps to test the reliability of the informant information. Detective Constable Price did not properly record the documents he reviewed in preparing his ITO’s. He chose to take short-cuts rather than thoroughly review all of the available information about the three targets. When he became aware that there was a video showing improper conduct by Constable Ebdon in relation to Mr. Cox, he did nothing. Detective Constable Price maintained in his testimony that Constable Ebdon’s actions were completely irrelevant to his investigation. This demonstrates a lack of understanding about the potential implications of police misconduct in relation to a target while an investigation is ongoing. The fact that Detective Constable Price remains unconcerned about the fact that Constable Ebdon was aggressively trying to elicit information about the Applicant by threatening and otherwise mistreating Mr. Cox is troubling. However, for all of his failings as an affiant, I do not find that Detective Constable Price had an intention to mislead the issuing justice. I am satisfied that the deficiencies in the ITO’s were the result of sloppiness, short-cuts and a failure to understand what is required of an affiant.
The question to be answered is what effect the deficiencies in the ITO’s have on the validity of the warrants. In Pires, Charron J. stated that even if there are inaccuracies and non-disclosure of material facts that does not necessarily detract from the existence of the statutory pre-conditions (paragraph 30). This principle was recently confirmed by the Ontario Court of Appeal in R v. Beauchamp 2015 ONCA 260, [2015] O.J. No. 1939 at paragraph 88. Issues with respect to the credibility of the affiant on one issue do not necessarily taint the entire affidavit. The affidavit must be reviewed in its entirety to determine whether the remaining information supports the granting of the warrant (R v. Camara 2005 BCCA 639, [2005] B.C.J. No. 2803 (B.C.C.A.) at paragraph 31). When there is no finding of untruthfulness in the substance of the information, credibility concerns on one issue do not support a global finding against the entire affidavit (R v. Araujo 2000 SCC 65, [2000] S.C.J. No. 65 at paragraph 60).
When dealing with overstatements or inaccuracies in an ITO, the appropriate approach is to excise that material and assess what remains to determine if there is a basis upon which the issuing justice could have granted the warrant. In the case of material omissions, the relevant missing facts should be read into the ITO (R v. N.N.M. 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (Ont. S.C.J.) at paragraph 322 and R v. McLaughlin [2005] O.J. No. 1156 (Ont. S.C.J.) at paragraph 9). In some circumstances, the conduct of the police leading to the granting of the warrant may be so egregious that the warrant must be set aside to protect the process (N.N.M. at paragraph 323 and Ebanks at paragraph 42). While the shortcomings of Detective Constable Price’s ITO’s are significant, I do not find that his conduct was so subversive that it requires a finding against the entire affidavit. Rather, the appropriate approach is to review the ITO’s as amended to redact any inaccurate information and to take into account any material omissions.
I adopt the comments of the Court of Appeal in R v. Lao [2013] O.J. No. 1995 (Ont. C.A.) at paragraph 54: “…the ITO was sloppy. This is not to be condoned. Such evidence is extremely important and care needs to be taken when presenting it”. In this case, there is a strong urge to condemn the conduct of Constables Ebdon, Gejewski and Ledwidge and to express disapproval of the manner in which their conduct was dealt with by the DRPS. That, however, is not my role in reviewing the warrants in question. I am required to assess the ITO’s as redacted and amplified to determine whether there was any basis upon which the issuing justice could have been satisfied that the statutory preconditions were met.
Summary of What the Police Knew:
[40] The following conclusions can be drawn from the reliable information that the affiant had at the time he swore his January 17, 2011 ITO (and which continued to exist in the two subsequent ITO’s):
According to the three confidential sources that I have found had some reliability, Mr. Guindon was actively involved in trafficking drugs between May and November of 2011.
Mr. Guindon was seen in a known crack house in November of 2011.
Mr. Guindon engaged in conduct consistent with a street level drug deal while under police surveillance on December 6, 2011.
Mr. Cox and Mr. Guindon were associated with each other in 2011.
Mr. Guindon and Mr. Cox both had prior criminal records that included several drug related convictions.
Mr. Guindon was a “Hang Around” member of the Hells Angels.
Conclusion on the Issue of Reasonable Grounds to Suspect
[41] Based on the totality of the information contained in the ITO’s that I have found to be reliable, there were sufficient grounds to provide the affiant with a reasonable suspicion that the Applicant was trafficking in one or more controlled substances and that evidence of this activity could be obtained through the use of DNR’s and tracking devices. As a result, there was a basis upon which the authorizing judge could have granted the three warrants in question. Mr. Guindon’s application to exclude evidence gathered as a result of the execution of the warrants is therefore dismissed.
Justice Bird
Released: June 29, 2015