ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0065
DATE: 2015-10-22
B E T W E E N:
Her Majesty The Queen,
Alex Hardiejowski, for the Federal Crown
- and -
Ryan Wilson Christiansen,
Steven M. Hinkson, for the Applicant
Applicant,
HEARD: August 26, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons On Application To Quash General Warrant
1The applicant, Ryan Christiansen, applies for an order quashing a general warrant dated April 9, 2013, issued by a judge of the Ontario Court of Justice, authorizing the surreptitious entry into Room 105, 212 Miles Street, Thunder Bay, and an order under s. 24(2) of the Charter excluding all evidence seen inside the address due to an alleged violation of the applicant’s s. 8 Charter rights. Further, the applicant seeks to quash the search warrant for the same address arising from the alleged unlawful search and seizure.
2The applicant asserts that the judge did not have any reasonable grounds to issue the general warrant.
3Section 8 of the Charter provides:
- Everyone has the right to be secure against unreasonable search or seizure.
The Standard for Issuance of s. 487.01(1) Warrant
[4]
The Standard for Issuance of s. 487.01(1) Warrant
In determining whether a search is reasonable under s. 8 of the Charter, the reviewing judge must determine whether the requirements of s. 487.01(1) have been satisfied. Section 487.01(1) provides that a judge may issue a general warrant if,
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique or device to be used or the thing to be done.
5The standard for issuing the warrant is described by Watt J.A. in R. v. Sadikov, 2014 ONCA 72, at paras. 81 – 82:
81The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.
82The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; and Wilson, at para. 52.
The Standard for Warrant Review
[6]
The Standard for Warrant Review
In Sadikov, Watt J.A. sets out the standard for warrant review:
83Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Sadikov.
84The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.
7In the instant case, the applicant attacks the facial validity of the authorizing general warrant. As such, the review is confined to an examination of the ITO and a determination whether, on the information disclosed in the ITO, the judge could have issued the warrant: Sadikov, at para. 37.
8It is not the role of the reviewing judge to decide whether he or she would have issued the warrant on the basis of the ITO. “Nor is it the reviewing judge’s role to draw inferences, or to prefer one inference over another.” The sole question is whether the ITO contains “… reliable evidence that might reasonably be believed on the basis of which the warrant could have issued” Sadikov, at para. 88.
The ITO
[9]
The ITO
Detective Constable Ryan Landgraff, an officer of the Ontario Provincial Police, and a member of its Drug Enforcement Section since 2004, was the affiant in the ITO.
10The ITO described information received by the police from five confidential informants. Detective Constable Landgraff deposed that Informant #1 was a proven, reliable informant who had provided information on two other occasions where drugs were seized. Informant #1 was established in the local drug subculture. The other four informants were first time informants. Informant #2 was said to be entrenched in the local drug culture. There was no information in the ITO that Informants #3, #4, and #5 were involved in the local drug subculture.
11In April 2012, Informant #2 told the police officer handling him that he had observed Mr. Christiansen do several drug deals, that Mr. Christiansen used to have a stash apartment and that he charged $250 for a ball (3.5 grams) and will sell ounces. To buy drugs from him, you had to know him and that you could call or show up at his business.
12In May and June 2012, Informant #1 told his handler that Mr. Christiansen owned Limited Edition and Naturally Fit with Tony Napolitano and that Mr. Napolitano and Mr. Christiansen were partners in everything. Mr. Christiansen went by the name “Bootsy”. Limited Edition was said to be just a store front used for selling drugs. The drugs might be kept at Naturally Fit. Mr. Christiansen was said to supply and use steroids and was moving a lot of marihuana. Kevin Mason was said to sell drugs for Mr. Christiansen and to move a lot of cocaine each week.
13Police notes indicated that in 2010, Tony Napolitano turned over approximately 10 ounces of cocaine to police voluntarily and was not charged. The cocaine was located in his business, Naturally Fit. Police notes also indicated that Mr. Mason had been convicted of drug offences in the past.
14In June 2012, Informant #1 told his handler that Limited Edition was never open. The only time there were people there was for drug deals or waiting for a drug deal. He said that Mr. Christiansen was moving approximately one kilogram of cocaine per week. He believed that the cocaine was stored either in Mr. Christiansen’s house or at his store. He said that Mr. Christiansen supplied six or seven dealers.
15Beginning in November 2012, police conducted surveillance on Limited Edition at 809 May Street, Thunder Bay. On November 8, 2012, they observed a vehicle with Alberta licence plates parked in the back of the lot. The vehicle was registered to Tyler Carruthers. The police notes indicated that Mr. Carruthers was an individual with past drug charges who had been identified by police intelligence as a high level trafficker of cocaine in the city.
16Further surveillance of Limited Edition on November 23, 2012, led to observation of a motorcycle, registered to Pat Hogan, arrive at the store. The male entered Limited Edition and left five minutes later. Police notes indicated that Mr. Hogan has an extensive background in drugs, was a former member of the Hell’s Angels and was charged for possession of a large amount of cocaine in Quebec.
17On November 23, 2012, a male, later identified as Mr. Carruthers, driving the above-mentioned vehicle registered in his name, was seen going into Limited Edition and leaving within a minute. Less than half an hour later, Mr. Carruthers was seen speaking to Mr. Christiansen outside Limited Edition and then leaving a few minutes later.
18On November 29, 2012, the vehicles registered to each Mr. Napolitano and Mr. Christiansen were seen parked in the parking lot of Limited Edition.
19On December 6, 2012, Mr. Christiansen and Edward McLeod exited the rear side door of Limited Edition. Mr. McLeod has past charges for drugs.
20Between December 20, 2012, and January 6, 2013, which was prime shopping time, Limited Edition was closed, except for short night time entries during five different evenings.
21In January 2013, Informant #3 told police that Mr. Christiansen and Mr. Napolitano were in the drug trade and were “business partners”. Mr. Christiansen was known as “Bootsy”. Mr. Christiansen was said to be the “hands on” guy and the “muscle”. Informant #3 said that both Limited Edition and Naturally Fit were fronts, used to wash drug money. Informant #3 said that both Mr. Napolitano and Mr. Christiansen and other drug dealers gave out free drug samples, including cocaine, to young girls at Arden Nightclub.
22In January 2013, police surveillance placed Mr. Christiansen at Hertz Rent-a-Car, leaving in a black van. A black van, owned by Lakehead Motors, from which Hertz obtained its rental vehicles, was seen at Mr. Christiansen’s residence.
23Between January 7, 2013, and January 24, 2013, video surveillance of Limited Edition indicated:
the store was open a little more regularly. However, on only one occasion did a person leave with what looked like a shopping bag;
the store was open on average between one and five hours on days when Mr. Christiansen was there;
on some weekdays and weekends the store did not open;
most people who entered the store went through the back door;
people who tried the front door found it locked.
24On January 23, 2013, an undercover police officer attended Limited Edition, posing as a customer. The store, which was very small, had mainly items of clothing for sale. There was a strong odour of marihuana. The officer purchased an item with cash. Change was given back, with no receipt.
25On January 25, 2013, Mr. Christiansen was seen operating a rental vehicle, which conducted several counter surveillance techniques.
26In January 2013, Informant #3 again spoke to the police. He said that Mr. Christiansen (“Bootsy”) and Mr. Napolitano were partners in their drug business. Bootsy was the “hands-on” dealer. Mr. Napolitano was said to stash cocaine. When Mr. Napolitano and Mr. Christiansen were short of cocaine supplies, they would deal with Frank Muzzi and vice versa. Mr. Napolitano and Mr. Christiansen were said to rent vehicles and when they did they were up to something.
27In February 2013, Informant #4 reported that “Bootsy” owned Limited Edition, that Bootsy was the money guy, that Pat Hogan got his dope from Bootsy at Limited Edition on May Street, in the basement, that Bootsy gets kilograms of cocaine and pounds of weed, that Bootsy brings the dope in and that Bootsy would have the stash and is repressing his cocaine.
28On March 23, 2013, Informant #3 reported that in February 2013, Mr. Christiansen had cocaine on him. Informant #3 said that Mr. Napolitano and Mr. Christiansen were shutting down Limited Edition and that they had taken over the Naturally Fit business from Mike Carongi for a drug debt owed to them.
29In January and February 2013, Mr. Christiansen was seen on surveillance tape on occasion going in and out of the rear door of Limited Edition on short visits, with other males, putting boxes in his truck or the vehicles of others. Mr. Napolitano was also seen on March 4, 2013, entering the rear of Limited Edition and then exiting with a large parcel that he put in his vehicle. Mr. Napolitano and the other driver interacted briefly and then both vehicles left.
30Between March 11, and 16, 2013, Mr. Christiansen, with the help of another male, appeared to move everything out of Limited Edition. A real estate agent visited the building, photographed it and put up a “For Lease” sign.
31Commencing March 25, 2013, for three days, surveillance was conducted on Mr. Napolitano. He attended a commercial office building at 212 Miles Street on two occasions for quick durations. In and around these stops, Mr. Napolitano appeared to be conducting counter surveillance manoeuvers in his vehicle.
32In March 2013, Informant #5 told police that Mr. Christiansen had been selling cocaine for years, that he brought in kilograms of cocaine and that when the cocaine came to town, it was stashed. Informant #5 said that Mr. Christensen rented cars from Hertz, by the airport, to avoid detection by the police.
33On April 4, 2013, police installed a camera viewing 212 Miles Street.
34On April 4, 2013, Detective Constable Landgraff and another officer met with the owner of the building at 212 Miles Street. The owner advised that Mr. Napolitano was a videographer and rented room 105. Room 105 was not marked. Room 105 was accessed through the front doors, through the lobby doors, through the building and then through a hallway door to the storage room door.
35On April 9, 2013, Detective Constable Landgraff reviewed video footage of the front doors of 212 Miles Street. At 11:58 am, he saw a grey Dodge quad cab truck pull into the west side lot. Mr. Christiansen was the driver. He went into the driver side rear door and closed it. He was carrying a white banker’s box under his right arm. He went in the front doors of the building. Minutes later, Mr. Christiansen left the building, carrying a smaller, orange box. He went to the truck, got in the driver’s seat and left.
36On April 9, 2013, Detective Constable Landgraff received a call from another officer who advised that Mr. Christiansen’s truck was parked at Hertz Rent-a-Car.
37In the ITO, Detective Constable Landgraff deposed that based on his experience as a police officer and as a drug investigator, he had reasonable grounds to believe that:
Mr. Christiansen was selling cocaine and stashing cocaine in Room 105 of 212 Miles Street;
Informants #1, #2, #3, #4 and #5 were confirming each other’s information that Mr. Christiansen was selling cocaine;
physical surveillance put Mr. Christiansen’s business partner, Mr. Napolitano, at 212 Miles Street;
Mr. Christiansen’s business partner, Mr. Napolitano, had rented Room 105, 212 Miles Street; and
video surveillance captured Mr. Christiansen at 212 Miles Street.
38Detective Landgraff deposed that based on the information contained in the ITO, he had reasonable grounds to believe that a surreptitious entry into Room 105, 212 Miles Street would provide information and evidence to support a Controlled Drugs and Substance warrant to search, specifically that cocaine was being stashed at that location.
39The evidence searched and sought for by the police would be:
to observe discarded material used for the trafficking of cocaine and to seize same for analysis and to preserve it as evidence if necessary;
to observe scales, debit lists, packaging materials in the room, and to seize the same for analysis and to preserve it as evidence if necessary;
to locate any controlled substance in the room and to seize same for analysis and to preserve it as evidence if necessary.
40Detective Landgraff deposed that the search would gain access to the building and the room via keys obtained from the building owner. Officers would enter the room and search for evidence. Samples and photographs might be taken. The officers would then exit the room and lock it up.
41A general warrant was issued under s. 487.01(1) of the Criminal Code by a judge of the Ontario Court of Justice.
42The general warrant was executed on April 9, 2013. On entering Room 105, 212 Miles Street, police located a banker’s box containing two kilograms of cocaine, loose cocaine totalling almost one kilogram, 800 oxycodone pills, rubber gloves, packaging material and a scale.
43The police used this discovery to apply for and obtain a search warrant under s. 11 of the Controlled Drugs and Substances Act for Room 105, 212 Miles Street and Mr. Christiansen’s residence.
44Mr. Christiansen was charged with possession for the purpose of trafficking in cocaine and oxycodone and possession of the proceeds of crime.
Submissions of Mr. Christiansen
[45]
Submissions of Mr. Christiansen
Mr. Christiansen submits that the information received by the police was from untested informants whose information was not proximate in time to the issuance of the general warrant, that these informants made bold assertions, without detail, and that their information was not substantiated by police investigation. Further, Mr. Christiansen submits that it would be a leap to connect him with Room 105, 212 Miles Street and an even greater leap that he went into Room 105 for an unlawful purpose.
Discussion
[46]
Discussion
I am satisfied that the facts provided in the ITO, in their totality, were sufficient to support a reasonable inference on the part of the judge who issued the general warrant that Room 105, 212 Miles Street was utilized by Mr. Christiansen and that a surreptitious entry into the room would provide evidence to support the issuance of a search warrant under the Controlled Drugs and Substances Act in order to seize that evidence.
47In R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 33, Code J. referred to the criteria for evaluating a tip from a confidential informant when determining whether a police officer’s grounds for search or arrest “… rise to the constitutional and statutory level of ‘reasonable and probable grounds’” set out by Martin J. A. in R. v. DeBot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207, at p. 219 (Ont. C.A.), aff’d (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.):
33The four main criteria for evaluating a tip from a confidential informer, when determining whether a police officer’s grounds to search or arrest rise to the constitutional and statutory level of “reasonable and probable grounds”, were authoritatively described by Martin J.A. in R. v. DeBot, supra at 219, in the following terms:
Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.
Martin J.A.’s “totality of the circumstances” approach to this issue has repeatedly been followed by the Supreme Court of Canada. See: R. v. DeBot, supra; R. v. Greffe (1990), 1990 143 (SCC), 55 C.C.C. (3d) 161 (S.C.C.); R. v. Garofoli, supra at paras 61-9.
48At paras. 34 and 35, Code J. observed:
34The four relevant criteria set out by Martin J.A. in DeBot – detail, means of knowledge, past reliability, and investigative corroboration – were adopted on the further appeal but were reorganized as three more general criteria, in the judgment of Wilson J. in R. v. DeBot, supra at 216, as follows:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, 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? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that 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.
35It appears from Wilson J.’s reasons in DeBot, and from the subsequent jurisprudence, that the term “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, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation.
49I disagree with the submission of Mr. Christiansen that the information received from the confidential informants consisted of nothing but bald assertions, without detail, unsubstantiated by police investigation.
50Informant #2, who was established in the local drug subculture and had a good knowledge of the packaging, production, concealment, transportation, price and sale of controlled substances, was said to have personally observed Mr. Christiansen do several drug deals and, in particular, had seen him do cocaine deals. He knew that Mr. Christiansen charged $250 for a “ball” (3.5 grams), and would also sell in ounces. He said that you had to know Mr. Christiansen to buy from him and that you could either call him or show up at his business.
51Informants #1, #3, #4 and #5 provided confirmation of the information from Informant #2 as to Mr. Christiansen’s involvement in the drug trade.
52Informants #1, #2, #3 and #4 provided consistent details as to the relationship between Mr. Christiansen and Mr. Napolitano, both with respect to Naturally Fit and Limited Edition and with respect to their partnership in the drug trade. The information was consistent that the businesses were fronts for drug deals.
53Police surveillance of Limited Edition placed both Mr. Christiansen and Mr. Napolitano there. Police observed unusually limited retail clothing operations at Limited Edition. However, they also observed individuals known to be involved in the drug trade entering and leaving Limited Edition, on short visits, while Mr. Christiansen was there.
54Both Informant #3 and the notes of the police indicate that in 2010, Mr. Napolitano voluntarily turned over cocaine to police which was located at Naturally Fit.
55Informants #1, #3 and #5 told police about Mr. Christiansen renting vehicles to conduct drug business and avoid police detection. The particular rental car agency, Hertz Rent-a-Car, was identified by Informant #5 and confirmed by police surveillance on three separate days. Police surveillance on January 24 and January 25, 2013, and April 9, 2013, had Mr. Christiansen renting vehicles from Hertz Rent-a-Car. On January 25, 2013, the vehicle Mr. Christiansen was driving was seen conducting several counter surveillance techniques, including pulling into a driveway and watching cars go by, pulling over to the side of the road and driving in block circles.
56Informant #1 was said to be a proven, reliable and numbered informant who had provided police with information on two occasions where drugs were seized. Although, Informants #2, #3, #4 and #5 were first time informants, as noted by Code J., in Greaves-Bissesarsingh, at para. 37, the fact that an informant has no past history of providing reliable information to the police is not fatal. Even anonymous but compelling tips supported by some corroboration have been held to constitute “reasonable and probable grounds”. In other words, weaknesses in the “credibility” of the tip, due to a lack of any proven track record, can be overcome.
57The first information received by police, from Informant #2 in April 2012, was approximately one year prior to the issuance of the general warrant. This, in itself, would not be “current” information. However, it was part of a continuum of consistent information received by police from all five informants, running to March 2013, the month prior to the month in which the general warrant was issued. The information was confirmed in certain respects by ongoing police surveillance that ran up to the day the general warrant was issued.
58In my view, it could not be said that the issuing judge made an unreasonable inference in connecting Mr. Christiansen with Room 105, 212 Miles Street and inferring that the room was used to stash drugs.
59Having regard to the criteria for evaluating the information from the confidential informants, the issuing judge had before him in the ITO compelling, credible and corroborated information that Mr. Christiansen and Mr. Napolitano were business partners at Naturally Fit and Limited Edition and that they were, as well, partners in the drug trade. Police surveillance revealed that Mr. Napolitano attended 212 Miles Street on two occasions that were close in time to Mr. Christiansen’s attendance on April 9, 2013. In or around those stops at 212 Miles Street, Mr. Napolitano appeared to be conducting counter surveillance techniques. On April 9, 2013, Mr. Christiansen left his own vehicle at Hertz Rent-a-Car and drove to 212 Miles Street. He carried a box into the building and emerged minutes later, carrying a different box, and drove off. Room 105, 212 Miles Street, was an unmarked room located in the back of a commercial building, accessed through a hallway door to the storage room door on that floor. The room had been rented by Mr. Christiansen’s business partner and his partner in the drug trade, Mr. Napolitano.
60I am satisfied that, on the totality of the information before the issuing judge, there was reliable evidence that might reasonably be believed on the basis of which the general warrant could have been issued.
61For these reasons, there was no violation of s. 8 of the Charter. As a result, there is no need to address the remedy of exclusion of evidence seen inside Room 105, 212 Miles Street under s. 24(2) of the Charter.
62Mr. Christiansen’s application to quash the general warrant is dismissed.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: October 22, 2015
COURT FILE NO.: CR-14-0065
DATE: 2015-10-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
Ryan Wilson Christiansen,
Applicant,
REASONS ON APPLICATION TO
QUASH GENERAL WARRANT
Shaw R.S.J.
Released: October 22, 2015
/mls