# ONTARIO
## SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:** CR-1590000494-0000
**DATE:** 20150922
**BETWEEN:**
HER MAJESTY THE QUEEN
– and –
INEZ GAYLE
Sam Siew, for the Crown
Christine Roth for the Defendant
**HEARD:** September 15-17, 2015
**RELEASED:** September 22, 2015
Allen J.
# REASONS FOR JUDGMENT
(Application under s. 8 of the Charter Challenging Validity of Search Warrant)
# BACKGROUND
## Overview
[1] The accused Inez Gayle was arrested and charged with two counts of possession of cocaine for the purpose of trafficking and four counts of possession of proceeds obtained from crime. The charges arise from a police investigation of the Island Grill restaurant located at 119 River St. in Toronto (“the restaurant”). The police had received word from four individual confidential informants (“CIs”) and five Crimestopper tipsters that various persons, including Ms. Gayle, were trafficking drugs at this restaurant.
[2] Four warrants were executed, one on the restaurant, one on Ms. Gayle’s home and one on each of two Honda vehicles registered in Ms. Gayle’s name. The warrants were obtained and issued simultaneously on July 5, 2015 by Cavion J. of the Ontario Court. They were executed on the same day. Ms. Gayle was not at home at the time.
[3] At the restaurant, the police located 12.46 grams of cocaine in the kitchen inside a false bottom container. At her home at 51 Butterworth Avenue in Scarborough (“the home”), the police located 122.95 grams of cocaine inside a container with a false bottom. At the home, the police also found money amounting to $4,785 (CDN) and $285 (US), $5,070 when converted to Canadian currency. One of Ms. Gayle’s charges was for money found in the gray Honda. The Crown withdrew that charge at trial and the indictment was amended accordingly.
# SEARCH WARRANTS ON PROPERTY
## Legal Principles on the Sufficiency of the Information to Obtain
[4] The defence indicated at this hearing that the focus of her challenge is on the search warrant on Ms. Gayle’s home. The defence provided no written materials or arguments in relation to the restaurant.
[5] The [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) at s. 487(1) provides the statutory pre-conditions for obtaining a search warrant. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing court there are reasonable grounds to believe an offence has been committed or will be committed at the property. Courts have developed principles to guide a court’s determination on the sufficiency of a warrant:
• The issuing court must be satisfied by the information sworn in a warrant affidavit and must act on reasonable and probable grounds in authorizing a warrant.
• The review judge should not substitute their own decision for that of the issuing court.
• It is not a question of whether the review judge would have issued the warrant but rather whether there was sufficient credible and reliable evidence that would allow the issuing court to grant the warrant.
• Based on the record before the issuing court, amplified on review, the review judge should decide whether the issuing court could have granted the authorization. If the review court’s conclusion is affirmative, it should not disturb the lower court decision.
• The reliability of the information must be at the time of the application for a warrant. It cannot be considered ex post facto from the results of the search:
[R. v. Garofoli, at para. 68 and R. v. Araujo, [2000] S.C.R. 992, at para. 54 - 56, (S.C.C.)]
The review court must look at whether the police demonstrated reasonable and probable grounds to believe:
• that an offence was being committed, had been committed or would be committed; and
• that evidence of the offence would be found at the specified time and place.
[R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.)]
# APPLICATION OF THE LEGAL PRINCIPLES
## Contents of the ITO
[6] The ITO in this case is not heavily redacted. The Crown provided a summary of the redacted information which neither the court nor the defence take issue with. D.C. Amanda Annetts drafted the ITO and is the affiant.
[7] The ITO contains information about the restaurant, about police surveillance of the restaurant and the home and the names and descriptions of suspects the police were investigating and the suspects’ activities in the restaurant. It also sets out some particulars on the four CI’s and contains the information provided by the four CIs and the five Crimestopper tipsters. Officer Annetts also sets out the basis for her grounds to believe drugs and money would be located at the home.
## The Confidential Informants and Crimestopper Tips
[8] The following information was provided about the confidential sources and tips:
### The Confidential Informants
[9] CI#1 was a registered informant who provided reliable information in the past. This source was used by the police previously and their information led to several arrests and convictions. CI#1 has no criminal record related to offences of obstruct justice, perjury or other crimes of deceit. The motivation for the information was monetary gain and this informant was warned of the consequences of providing false information and that compensation would only be forthcoming if the information is proven truthful.
[10] CI#1provided a description of a black female, age 45, 5′ 5″ tall, chubby [healthy] build, with glasses and short curly hair. This source states that “Inez” deals crack cocaine behind the counter and the supply is out back in the kitchen area. The source indicated her name is “Girly” or Gail. This source names a man “Ricky” as dealing crack cocaine from the restaurant and names “Alphonse” as acting as a look out for the police outside the restaurant. C1#1 indicated they have first-hand experience purchasing crack cocaine from the restaurant and also detailed the way the drugs were packaged and sold. It is not clear whether CI#1 personally bought drugs from “Inez, Girly, Gail” or whether he only knew this second-hand. CI#1 does not say they personally saw “Inez” selling drugs so it is not clear if this is second-hand information.
[11] CI#2 and CI#3 were also registered informants who provided reliable information on one occasion. CI#2’s information led to the arrest of two people for drug trafficking and CI#3’s information led to a search warrant yielding drugs and money. CI#2 had no criminal record related to offences of obstruct justice, perjury or other crimes of deceit and CI#3 had one dated conviction for a crime of dishonesty. Both of these informants were also motivated by monetary gain and given the same warning as given to CS#1 about truthfulness and compensation.
[12] CI#2 indicated that a black man named “Ricky” sold crack cocaine out of the restaurant and that he bought drugs from “Ricky” for so many years. This informant stated they had first-hand experience buying drugs from a woman inside the restaurant who would retrieve the drugs from the kitchen and then sell the drugs to CI#2. CI#2 does not name or describe the woman.
[13] CI#3 mentioned a female named “Paulette”, age 45, thin build, sometimes wearing a weave, dealing drugs from inside the restaurant. This source gave information about how the drugs were packaged and when they would be sold and also stated they have first-hand experience buying drugs from Paulette and Ricky.
[14] CI#4 was also a registered informant who provided information previously which, however, was not corroborated. This source had no criminal record for offences of obstruct justice, perjury or other crimes of deceit. The motivation for the information was monetary gain and CI#4 was also given the same warning as was given to the other informants about telling the truth and compensation. CI#4 does not indicate a source for any of their information. This informant does not indicate whether they have first-hand experience. However, CI#4 states a female “Girlie”, black skin, in her 40s, heavy build, short black straight hair, owns the restaurant and deals drugs out of the restaurant. This source stated the drugs were kept in the restaurant and that “Paulette” conducted most of the deals.
### The Crimestopper Tips
[15] The Crimestopper tips were given in June 2012, November 2011, January 2011, November 2006 and October 2006. Three of the tips speak of drug dealing occurring at the restaurant. One tipster states they believe a female owner of the restaurant is dealing but does not state the source of that belief. Ms. Gayle is not named in any of the tips. No descriptions are given of the female who was dealing drugs from the restaurant.
[16] The two 2006 tips have little value. They indicate a black male is dealing drugs out of his vehicle, one of those tips indicating the black male is dealing the drugs from his vehicle in a parking lot. Some of the tipsters speak of the drug dealers being Jamaican and mention a male on the premises.
(Decision continues exactly as in the source text.)
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