ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-3107
DATE: 20150716

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adrian Morrison and Jeffrey Ntim
Accused

Edward J. Posliff, for the Crown

Maria Carroccia, for the Accused, Adrian Morrison
Frank Miller, for the Accused, Jeffrey Ntim

HEARD: February 23, 24 and 25, 2015

RULING ON SEARCHES INCIDENT TO ARREST

Pomerance J.:

[1] Confidential informers play an integral role in the fight against crime, including drug offences. As Cory J. observed in R. v. Scott, 1990 27 (SCC), [1990] 3 SCR 979: “Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks”.

[2] While informers are important, they do not substitute for other police work. A tip from an informer can launch or further an investigation, but will rarely furnish sufficient grounds for search or arrest. Usually, there must be some confirmation of the tip through independent police investigation, to provide an assurance of reliability. Reliability is also a function of the detail contained in the tip and the credibility of the informer. The point is that informers may have criminal records and hidden agendas. Some care must be taken before their tips are used to interfere with the liberty or privacy of a citizen.

[3] In this case, the police relied on tips from two confidential informants to obtain a warrant to search a residence, and to arrest the two accused before the court. The police acted precipitously. The tips were unconfirmed, of limited detail, and only one informant was of known reliability. The tips furnished suspicion, but not reasonable grounds. As a result, the arrests were unlawful, and the searches carried out incident to arrest breached s. 8 of the Charter. I have determined that the fruits of the searches should be excluded under s. 242 of the Charter, owing, in part, to the systemic nature of the Charter violations.

[4] The following will set out the bases for these conclusions.

THE FACTS

The Initial Tip

[5] On May 22, 2014, while at home, Constable Charles Campbell was contacted by a confidential informant at approximately 11:00 p.m. That informant told him that a person from Toronto using the name “Indian” or “Wheels” was selling crack cocaine from apartment 104, 333 Glengarry Ave. in the City of Windsor. The person was described as a Jamaican man, 32-34 years of age, 5’8” or 5’9”, with hair in dreadlocks, using elbow crutches and a wheelchair. It was said that Wheels sold drugs out of the back window of the apartment.

The Briefing

[6] Constable Campbell’s shift began the next morning at 8 a.m. He consulted Versadex, the police information system, but did not learn anything of real value to the investigation. He scheduled a briefing to take place at 9:15 a.m., with several officers in attendance. He told the officers about the information he had received the night before. A briefing sheet was distributed which included the following:

Information from two confidential informants, one of which is past proven, indicates that a black male who uses the street names “Indian” and “Wheels” is using apartment #104 at 333 Glengarry Ave and selling crack cocaine from that location.

Further information indicates that he may be in possession of a handgun.

Reasonable grounds exist to arrest this male for possession of a controlled substance for the purpose of trafficking.

[7] When asked about the assertion in the briefing sheet that “reasonable grounds exist to arrest this male…”, Constable Campbell testified that he believed that the information in possession of police was sufficiently compelling to justify an arrest at that time.

The Conversation with Spratt

[8] Constable Campbell testified that, prior to the briefing, he had a conversation with Constable Spratt. According to Campbell, Spratt told him that he, too, had received information about a man named “Indian” or “Wheels” from a confidential informant. Later that day, Spratt gave Campbell additional information, namely that Indian/Wheels was a black male from Toronto, that he used a wheelchair or crutches, that he was skinny and about 30 years old, and that he sold drugs through the back window of his apartment. Constable Campbell relied upon this information in his ITO, referring to Constable Spratt’s informant as Source “B”.

The ITO

[9] Constable Campbell prepared an ITO, seeking a telewarrant to enter and search apartment 104, 333 Glengarry Avenue. Constable Campbell completed the paperwork at 3:30 p.m. on May 23, 2014, and the telewarrant was signed that same day at 5:45 p.m. Because the sufficiency of grounds is in issue, I will refer in some detail to the contents of the ITO.

Source “A”

[10] Source “A” was known to Constable Campbell. This source was described as follows in the ITO:

8. On May 22nd, 2013 I received information from a Confidential Informant, hereinafter referred to as Source ‘A’. This information was regarding a male named “Indian” who is actively in possession of selling crack cocaine from an apartment at 333 Glengarry Avenue. Based on this information I began an investigation. I have had an Informant/Handler relationship with Source A for approximately 5 months. During that time Source A has provided information of an intelligence nature which I have corroborated through the use of CPIC, Versadex and through other investigative means and this information was found to be reliable and accurate. Source A does not have any criminal record, and is an admitted drug user. Source A does not have any convictions for obstructing police or perjury Source A is well versed in the drug subculture. I believe that the information Source A has provided to me in relation to this application is credible and reliable, and that the information provided to me is compelling.

[11] Source “A” was said to have provided the following information to Constable Campbell on May 22, 2013:

9. On May 22nd 2013 I received the following information from Source A as it relates to “Indian”:

a) A black Jamaican guy from Toronto is Posting Up at an apartment at 333 Glengarry Ave., in apartment #104.

b) Source A only knows the guy as “Indian”. Source A describes “Indian” as a black male, skinny and walks with the use of canes. “Indian” wears his hair in short dreadlocks. He is about 32 to 34 years old and is around 5’8” to 5’9” tall.

c) . . . (reflects redacted material).

d) Source A thinks “Indian” might also go by the nickname “Wheels” because he will use a wheel chair to get around.

e) “Indian” uses the cell phone number 226-246-6193 and people will call up to place orders for crack before attending the apartment.

f) Source A says that “Indian” usually wears fancy running shoes.

g) Source A was in the apartment, within the last 12-18hrs and has observed. ..(reflects redacted material) crack cocaine.

h) Source A states that “Indian” will deal with some customers inside the apartment, or will deal to people who walk up to the back window.

i) Source A says that “Indian” usually keeps the drugs on him . . . (reflects redacted material).

j) Most of the time, the crack is pre-packaged in clear plastic.

k) Source A has heard that “Indian” has a gun . . .(reflects redacted material).

l) . . . (reflects redacted material).

m) Source A believes that “Indian” has been using apartment 104 at 333 Glengarry Ave for the past 2 months.

[12] Source “A” was said to have provided the following “updated” information on May 23, 2013:

13. On Thursday May 23rd 2013, I spoke with Source A who provided me with updated information regarding “Indian”

a) “Indian” is still inside apartment 104 at 333 Glengarry Avenue.

b) “Indian” is staying there with his girlfriend . . . (reflects redacted material).

c) Source A has observed “Indian” with . . . (reflects redacted material)…………crack cocaine in a clear plastic baggy.

d) . . . (reflects redacted material).

e) Source A says that “Indian” is always up (meaning that he always has product to sell).

f) Source A says that most people in the building know that “Indian” is selling drugs out of this apartment but are too scared to call the police about him.

g) Source A describes the apartment as a main floor apartment, 2 doors down from the main entrance. It is a one bedroom apartment with windows that face the back of the building

h) Source A believes that “Indian” will be staying at this apartment for a while . . .(reflects redacted material). …………. Source A informed me that there have been a few dealers in the building, and that they all prefer to use apartments on the main level so it is easy and quick access in and out to buy drugs.

Source “B”

[13] In his ITO, Campbell referred to the information received from Constable Spratt about Source “B” as follows:

17. On Thursday May 23rd 2013 at approximately 1:30p.m. I spoke with Constable Spratt in the Windsor Police Drugs and Guns Enforcement Unit. Constable SPRATT informed me that he had received information from a past proven reliable source in regards to a male who goes by the name “Wheels” or “Indian” who is dealing crack cocaine out of apartment 104 at 333 Glengarry Avenue. Constable Spratt has had an informant/handler relationship since September of 2012. This informant will hereinafter be referred to as Source ‘B’. Source ‘B’ has provided information to police that has led to the previous execution of a CDSA search warrant where the items sought were found and charges were laid against the person named in the warrant. Source B is a drug user, and is also well versed in the drug sub-culture. Source B does have a criminal record, but does not have any convictions for obstructing police or perjury. Constable SPRATT believes that the information provided to him by Source B is credible and reliable. Source B provided Constable SPRATT with the following information as it relates to “Wheels”/”Indian”:

a) Source B advised that a guy named “Wheels”, who also goes by the name “Indian” is selling crack out of apartment 104 at 333 Glengarry Avenue.

b) Source B describes “Wheels” as a Jamaican Black male from Toronto who gets around in a wheel chair, or uses the arm crutches to move around.

c) Wheels is a skinny, around 30yrs old.

d) Source B says that “Wheels” has mentioned having a gun for protection.

e) Source B says that “Wheels” is posting up out of the apartment. The apartment is on the Ground level and “Wheels” will deal crack right of the back window.

Summary of Grounds

[14] Constable Campbell summarized his grounds for belief in the following paragraph of the ITO:

18. Based on the above information, I believe that a male who goes by the name of “Indian”, also known as “Wheels” is currently in possession of and selling crack cocaine out of apartment 104 at 333 Glengarry Avenue. I believe this for the following reasons:

• Both Source A and Source B have provided information regarding a black Jamaican male, and both have said that he goes by the name “Wheels” or “Indian”.

• Both Sources have provided a similar description of Wheels/Indian as a skinny black male who uses either a wheel chair or crutches to get around . . . (reflects redacted material).

• Both Sources provided the same apartment number that Wheels/Indian is selling crack cocaine out of.

• Both Sources provided information that Wheels/Indian has mentioned having a gun.

No Independent Confirmation of the Tips

[15] At the briefing, Constable Campbell directed officers to set up surveillance around the apartment building at 333 Glengarry Avenue. The officers reported back to him that it was impossible to conduct meaningful surveillance because people were constantly coming in and out of the building. In the ITO, Constable Campbell stated in para. 16 that:

16. 333 Glengarry is a large multilevel apartment complex, housing many people. It is difficult, if not impossible to conduct surveillance of the apartment without being detected.

[16] He further stated, in para. 19 that:

19. Members of the Windsor Police Drugs and Guns Enforcement Unit are currently maintaining surveillance of the building at 333 Glengarry Avenue. Due to the type of residential high rise apartment complex it is difficult to maintain close observation of apartment 104. However, up to this time no one matching the description of Wheels/Indian has exited the building.

[17] Other checks of police records, such as “versadex” yielded nothing of relevance to the investigation of a person known as “Indian” or “Wheels”. An address history check led Campbell to believe that 333 Glengarry was used for public housing.

ANALYSIS

The Issues

[27] I must determine the following issues:

1. Do the accused have standing to raise issues under s. 8 of the Charter?

2. Did the arrests and/or searches conducted incident to arrest violate the Charter?

3. If the Charter was violated, should the evidence seized from either or both accused be excluded under s. 242 of the Charter?

Standing

[28] As a preliminary issue, the Crown argues that Morrison and Ntim do not have standing to challenge the warrant authorizing entry and search of apartment 104, 333 Glengarry Avenue. The Crown says that there was no evidence to establish that the accused are the tenants of the apartment, or that they reside at that address. On this basis, it is said that they have no standing to challenge the warrant.

[29] In R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, Cory J. summarized the principles of standing that apply in the s. 8 context:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or the place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

[30] In Edwards, the Crown sought to introduce crack cocaine seized from the apartment of the accused’s girlfriend. While the seizure was of questionable validity, Mr. Edwards could not use it to seek a Charter remedy. He did not reside at the apartment; rather, he was "an especially privileged guest", who possessed a set of keys, and kept a few belongings in the residence. Edwards did not have an expectation of privacy in the apartment and therefore could not challenge admissibility of evidence seized from that location.

[31] This case is different from Edwards. First, the accused persons were physically present at the time of the search. Secondly, the accused persons were themselves the subject of the searches. A citizen has standing to challenge a search of his or her person, wherever it might occur. Third, the police testified that the grounds for arresting Mr. Morrison were those set out in the ITO. By necessary implication, these grounds also inform the arrest of Mr. Ntim, who was present with Mr. Morrison in the apartment. The accused are entitled to challenge the sufficiency of grounds in the ITO on the basis that they are also the grounds for the arrests.

[32] Given this conclusion, I need not determine whether the accused otherwise have standing to challenge entry of the apartment. I note, as an aside, that the issue of standing is far from clear. There was no evidence to establish that the accused were the lawful tenants of the unit, but nor was there evidence to establish that they were trespassers. The evidence established that the apartment was a public housing unit, and its tenancy changed from time to time. Given the presence of the accused at the time of the search, it could be inferred that one of the individuals had a possessory interest in the location, and that he (or she) could regulate and control access of others to the location. The onus rests on the accused to establish a privacy interest, but this may be discharged through circumstantial evidence. Suffice to say that this case is very different than Edwards, in which the apartment was known to belong to someone other than the accused.

CONCLUSION

[50] Accordingly, I find that the arrests of Mr Morrison and Mr. Ntim were unlawful. To the extent, the searches conducted incident to those arrests were also unlawful, and therefore in breach of s. 8 of the Charter.

SECTION 24(2) OF THE CHARTER

[51] I have determined that the evidence seized following the arrests of the accused should be excluded under s. 24(2) of the Charter.

[71] In the result, the evidence seized by the police following and incident to the arrests of Morrison and Ntim is excluded from the trial.

Original signed by Justice Renee Pomerance

Renee M. Pomerance
Justice

Released: July 16, 2015

COURT FILE NO.: CR-14-3107
DATE: 20150716

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Adrian Morrison and Jeffrey Ntim

Ruling on searches incident to arrest

Pomerance J.

Released: July 16, 2015