R. v. Bogle, 2015 ONSC 586

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Bogle, 2015 ONSC 586

COURT FILE NO.: CRIM J(F) 544/13

DATE: 2015-01-26

B E T W E E N:

HER MAJESTY THE QUEEN

D. Wilson, for the Crown

Applicant

• and -

DONOVAN BOGLE

H. John Kalina, Counsel for the Accused

Respondent

HEARD: December 8, 2014

RULING RE: SEARCH WARRANT

Lemon J.

The Issue

1Mr. Bogle has brought an application for an order declaring that his right to be secure against unreasonable search or seizure has been violated and that the evidence obtained as a result of that breach should be excluded. In short, he seeks an order that a warrant executed at his residence be quashed.

2At the end of argument, I advised that the application was dismissed for reasons to follow. These are those reasons.

Background

3Mr. Bogle is charged with trafficking in cocaine, having possession of cocaine for the purpose of trafficking and simple possession of that cocaine. The events which led to these charges occurred on March 8 and 10, 2012. In a separate indictment, Mr. Bogle is charged with failing to comply with a condition of his recognizance entered into before a justice of the peace.

4Officer Brady McEachern swore the Information to Obtain the search warrant.

5Although the Information to Obtain was excised to protect the identity of a confidential informant, the defence made no request for further disclosure or for a judicial summary. Although an application was brought for leave to cross-examine Officer McEachern with respect to the Information to Obtain, that request was withdrawn. Accordingly, my ruling is based on the information set out in the Information to Obtain.

Confidential Informant

6Officer McEachern stated that, beginning in 2012, he received information from a confidential informant (for ease of reference I will simply refer to the informant as “he”, although there is no indication of whether the informant is male or female). This information was about a male party later identified as Mr. Bogle. The informant said that Mr. Bogle trafficked in crack cocaine. The informant told Officer McEachern that the informant could phone Mr. Bogle and, shortly afterwards, Mr. Bogle would meet the confidential informant. The informant advised that he had purchased a quantity of crack cocaine from Mr. Bogle within the last week.

7The informant advised that Mr. Bogle resided at 23 Rosepac Avenue, Brampton, Ontario and that while making drug deliveries, Mr. Bogle was observed driving a grey Chevrolet pickup truck.

8The informant was shown a picture of Mr. Bogle and he identified Mr. Bogle as the individual with whom he had dealt.

9Officer McEachern swore that the confidential informant had also provided reliable information in the past. The information had been detailed and other police officers had been able to confirm the majority of the information provided by the informant.

10Officer McEachern set out in his affidavit that the confidential informant had not provided police with any information that had been proven to be false. The informant had never been charged or convicted of obstructing justice or perjury. Officer McEachern did not doubt the sincerity of the informant’s information.

Corroboration by Officer McEachern

11As a result of that information, Officer McEachern conducted his own investigations.

12He carried out a CPIC inquiry and found that while Mr. Bogle did not have any criminal convictions, he was currently on charges of assault with intent to resist arrest and trafficking of a controlled substance. The offence date of these charges was August 25^th, 2010.

13At that time, members of the Peel Regional police were carrying out an undercover operation within a motel room. It was alleged that Mr. Bogle was contacted and he agreed to sell the undercover operator $100 worth of crack cocaine. Mr. Bogle subsequently attended and sold police the cocaine. An attempt was made to arrest Mr. Bogle at which time it is alleged that he fought with police to resist arrest. Mr. Bogle was ultimately charged with the above offences.

14Officer McEachern carried out further database inquiries into Mr. Bogle. He learned that on March 30^th, 2011, Mr. Bogle was investigated for a Highway Traffic Act offence in the City of Brampton while operating a blue Honda Accord. He provided an address of 23 Rosepac Avenue at the time of the investigation.

15On January 6^th, 2012, Officer McEachern attended the Rosepac address, and observed that it was a fully “attached” single dwelling home, with a second story. Parked in the driveway was a grey/silver pickup truck bearing Ontario licence plate 5206RK. Parked on the roadway in front of the house was an older model Lexus bearing Ontario licence plate, BJTL865.

16He then carried out database searches on both vehicles and licenses. The pickup truck was registered to a Una Grant, with an address of 23 Rosepac Avenue, Brampton. The Lexus was registered to a Kenneth Ramsey with an address of 23 Rosepac Avenue, Brampton. No relevant information was retrieved from queries about Ms. Grant or Mr. Ramsey.

17Officer McEachern was able to find that on March 8^th, 2011, police investigated the grey/silver truck bearing licence plate 5206RK, for a Highway Traffic Act matter in the City of Brampton. At the time, Mr. Bogle was operating the vehicle.

18On February 17^th, 2012, Officer McEachern again attended 23 Rosepac Avenue. He observed Mr. Bogle apparently doing repairs on a silver Acura Integra in the driveway.

19On February 17^th, 2012, Officer McEachern carried out another database search on the silver Acura. He learned that the vehicle was registered to an unrelated individual with a Brampton address.

20On March 8^th, 2012 members of the Street Crime Gang Unit also conducted surveillance at 23 Rosepac Avenue. They observed Mr. Bogle leaving the residence and working on the silver/grey pickup truck in the driveway. A silver Honda CRV was parked on the street in front of the residence.

21At 5:24 P.M., Mr. Bogle left the residence in the silver CRV. At 5:38 p.m., he was observed attending a farmhouse situated at 11248 Mississauga Road, Caledon, Ontario.

22At 6:02 p.m., a black older model Chevrolet Impala was observed pulling into the driveway of this farmhouse. A male was observed leaving the vehicle and entering the farmhouse as well.

23At 6:07 p.m., Mr. Bogle was observed leaving the farmhouse in the silver CRV. The vehicle was then observed attending the Norval Farm Supply located at 10201 Mississauga Road, Brampton. A white pickup truck bearing licence plate 909OZE was observed parked in the lot. It was the only vehicle parked in the lot. The driver of the pickup truck left his vehicle and got into the passenger seat of Mr. Bogle’s vehicle.

24At 6:13 p.m. the passenger left Mr. Bogle’s vehicle and returned to his truck. Mr. Bogle then left the area, southbound. The pick up truck left the parking lot a short time later. Officer McEachern was of the belief that Mr. Bogle had conducted a drug transaction with the occupant of the truck.

25At 6:21 p.m., the police stopped the occupants of the truck. The driver of the truck was found to be in possession of approximately 3.5 grams of crack cocaine. Upon his arrest, the driver readily admitted that he had just purchased the crack cocaine from the male operating the CRV.

26A day later, on March 9^th, 2012, members of the Street Crime Gang unit conducted surveillance on Mr. Bogle. They observed Mr. Bogle leaving the residence in the CRV. At 1:36 p.m., he attended an address on Ballycastle Drive, Brampton. At 1:40 p.m., Mr. Bogle left the residence and surveillance was continued.

27At 1:44 p.m., Mr. Bogle was observed attending Duncan Drive, in Georgetown. At this time, police observed a male approaching the suspect’s vehicle. The officers were of the opinion that Mr. Bogle was involved in a drug transaction at this time with the male pedestrian, however they were unable to confirm. Surveillance was continued on Mr. Bogle and he was followed back to Brampton.

28At 2:07 p.m. Mr. Bogle parked his vehicle on Muirland Crescent in the City of Brampton. Mr. Bogle then attended a residence on Muirland Crescent. Police were unable to verify the address that Mr. Bogle attended. As a result at approximately 2:45 p.m. surveillance was concluded.

Further Steps by Officer McEachern

29As a result of the above information, Constable McEachern requested that a Controlled Drugs and Substances Act search warrant be granted for the residence located at 23 Rosepac Avenue in order to search and seize the suspected crack cocaine. He also requested an entry at night provision be included in the warrant because there was currently no Justice of the Peace available in the region of Peel and police were currently conducting surveillance at the address waiting for the warrant.

30The warrant was executed at the Rosepac address and police found $11,000 in cash and 118.7 grams of crack cocaine in the house. Mr. Bogle was apparently arrested at the residence at that time.

Positions of the Parties

31The defence submits that the grounds for the warrant amounted only to information obtained from a confidential informant of unknown reliability and the surveillance observations of Mr. Bogle simply driving his vehicle to multiple locations. The defence submits that on a review of that record, taking into consideration the factors set out in Garofoli, the information did not support the issuance of the warrant.

32The defence points out that there is nothing illegal about short attendances at a residence or attending at a farmhouse. Further, on a detailed review of the discovery transcript, the arresting officer could not specifically identify Mr. Bogle as selling the cocaine in the feed store parking lot but only that the arrested individual purchased the cocaine “recently” from an “older black guy” which may or may not have been Mr. Bogle.

33In response, the Crown submits that I should review the totality of the information and see whether the justice of the peace could have issued the warrant based on the information provided. He submits that, in context, the information provided by the informant is compelling, credible and corroborated. Finally, based on all of the information, there is a reasonable probability than an offence has occurred.

Legal Authorities

34The relevant principles that I need to apply to these facts related to search warrants and their review have been set out in a host of leading cases. See: R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), R. v. N.N.M., 2007 31570 (ON SC), [2007] O.J. No. 3022., R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 16, [1990] 2 S.C.R. 1421, R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), R. v. Hosie (1996), 1996 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), R. v. Farrugia, 2012 ONCJ 830, R. v. Morelli, 2010 SCC 8, R. v. Greffe (1990), 1990 143 (SCC), 55 C.C.C. (3d) 161 (S.C.C.), R. v. Herdsman, 2012 ONCJ 739, [2012] O.J. No. 5598, R. v Adansi, 2008 ONCJ 144, 2008 O.J. No. 1202.

Generally

35A search warrant is presumptively valid. The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference should be made to all data within the four corners of the information for a common sense review; it should not be a line-by-line word-by-word dissection.

36The ITO must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place. Reasonable grounds "are not proof absolute" though they must be more than mere suspicion.

37The issuing justice’s decision must be upheld unless the applicant meets the burden of demonstrating the warrant’s invalidity by establishing on a balance of probabilities that there was no basis for its authorization.

38The reviewing court is not entitled to substitute its decision for the issuing justice. Rather, the court is obliged to determine whether the decision of the judicial officer is one he or she could reasonably and judicially have reached in the exercise of discretion to issue the warrant.

39The results of the search cannot, ex post facto, provide evidence of reliability of the information.

Confidential Informants

40Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances.

41Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

42The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including the degree of detail of the "tip”; the informer's source of knowledge and indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

43The strength of the informant’s information is considered using the “Three C’s”. Was the information predicting the commission of a criminal offence compelling? Where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?

44Each of these factors does not form a separate test. Rather, the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

45“Compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, such as whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. “Credibility” captures considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. “Corroboration” refers to any supporting information uncovered by the police investigation.

46A detailed tip, based on first hand observations that are reasonably current, has generally been regarded as “compelling” in the case law. On the other hand, a vague or conclusory tip, based on second hand hearsay that is not reasonably current, would obviously not be “compelling”.

Analysis

47It is important to note that the affiant need not prove that an offence has occurred, only that there are reasonable grounds to believe that an offence has been committed.

48The informant was able to provide recent detailed information of Mr. Bogle and his activities. The informant was able to provide his own observations of the purchase of crack. He specifically identified Mr. Bogle as his source of cocaine.

49Officer McEachern gave reasons to find that information credible. There was no attack on that credibility.

50The information was then corroborated to the extent of the residence and the vehicle in use. The activities observed, if not proof beyond a reasonable doubt of trafficking, were consistent with how the informant described Mr. Bogle’s manner of doing business.

51Given that the informants’ information was compelling, credible and corroborated, I am satisfied that the justice of the peace could have granted the warrant. On these facts and submissions, there is no reason to set aside the warrant.

Lemon J.