ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-90000544-0000
DATE: 20151103
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SEAN ARRINDELL OVID
Applicant
Chris de Sa and Kandia Aird, for the Crown
Kevin Hunter, for the Applicant
HEARD: October 6 and 7, 2015
GAROFOLI RULINGS
B. P. O’Marra, J.
INTRODUCTION
[1] The applicant is charged with three counts of possession of narcotics for the purpose of trafficking and one count of possession of the proceeds of crime. Drugs and cash were seized when a search warrant was executed by members of the Toronto Police Service (TPS) on March 11, 2013. The applicant was arrested when he returned to the apartment while officers were executing the warrant.
[2] In addition to all of the other disclosure provided to the applicant, the crown delivered a redacted copy of the Information to Obtain (ITO) dated March 11, 2013. The redacted portions relate to a confidential informant who provided significant information to the affiant.
[3] At the outset of trial, the applicant challenged the validity of the search warrant. He also sought leave to cross-examine the affiant and exclusion of all evidence seized pursuant to the warrant.
[4] In response, the crown opposed the application to cross-examine the affiant. The crown also asked the court to review and rely on the unredacted ITO in support of the validity of the search warrant. That is the procedure referred to as Step 6 from the Supreme Court of Canada decision in Garofoli, [1990] 2 S.C.R. 1421 (1990).
[5] I received the following for review:
a) the redacted copy of the ITO;
b) an unredacted copy of the ITO; and
c) the proposed judicial summary drafted by the crown.
Items b) and c) were ordered to be sealed. After reviewing those documents, I advised counsel that the proposed judicial summary appeared to include sufficient information to allow the applicant to mount an attack on the ITO while ensuring that informer privilege is maintained. However, I reserved ruling on that issue to allow counsel for the applicant to review the proposed judicial summary and make further submissions.
[6] Counsel for the applicant also applied to have the court receive and review the complete police file related to the confidential informant. He did not seek access to the file for himself but submitted that I should review it before ruling on the sufficiency of the search warrant. The crown opposed this and cited the decision of Justice R. Goldstein of this court in R. v. Grant, 2013 ONSC 7323. Counsel for the applicant did not refer me to any other authorities and abandoned that particular application after a review of Justice Goldstein’s decision. See also R. v. Ahmed et al, 2012 ONSC 4893, R. v. Ali, 2013 ONSC 2629.
BACKGROUND
[7] On March 11, 2013, the TPS Major Crime Unit obtained a telewarrant pursuant to s.11 of the Controlled Drugs and Substances Act (CDSA). It authorized them to search the premises at 2014 Martingrove Road, Unit # 56 in Toronto for the following items:
a. crack cocaine;
b. marijuana;
c. proceeds;
d. scales;
e. packaging;
f. debt lists.
The offences referred to in the ITO were possession of marijuana and cocaine contrary to the CDSA.
[8] The ITO to obtain the warrant was based on the affidavit of Detective Constable Milpreet Khera. The affidavit contained information from one confidential informant as well as checks of various police databases.
[9] The search warrant was executed on March 11, 2013. A search of the unit uncovered 92 grams of marijuana, 250 grams of powder cocaine and 65 grams of crack cocaine.
[10] The redacted ITO included the following information from the confidential informant:
- A male known as “Sean” was selling crack cocaine and marijuana.
- Sean was selling these drugs from 2014 Martingrove Road.
- The confidential source had purchased crack cocaine from Sean.
- Sean is male black, Jamaican, 5’5” – 5’6” tall, and approximately 38 years old.
- Sean’s cell phone number is 416-508-6016.
- Sean has short or shaved hair.
- The front door of the unit is white with the number 56 nailed onto the brick.
- The confidential informant had purchased crack cocaine from Sean at 2014 Martingrove Road, Unit #56 within the approximate two months prior to March 11, 2013.
[11] A check of various police databases revealed the following:
a male named Arrindell Sean Ovid with a date of birth of December 19, 1969 lived at 2014 Martingrove Road, Unit #56;
between September 29, 2002 and June 14, 2011 there were 22 occasions of reports that linked Sean Ovid to the target address.
[12] A photo of Arrindell Sean Ovid was obtained and shown to the confidential informant. He positively identified the man in the photo as Sean, the man who sold him drugs.
[13] A police occurrence report dated March 18, 2006 indicated that Sean Arrindell Ovid was arrested inside 2014 Martingrove Road, Unit #56. He was charged with various offences including trafficking in cocaine.
[14] A check on the phone number provided by the source was negative.
REQUESTS FOR MORE INFORMATION RELATED TO DRUG DEALING
[15] The majority of the requests by the applicant for further information related to the following:
a) the alleged modus operandi of drug dealing by the target; and
b) drug purchases allegedly made by the source.
[16] The redacted ITO makes clear that virtually all of the information from the source is based on first hand observations. Any further specific information on these issues could narrow the pool or identify the source. On that basis I declined to order the crown to provide further information other than further information of a general nature that I proposed to crown counsel. It was agreed that information would be provided to counsel for the applicant.
MOTIVE OF THE CONFIDENTIAL SOURCE
[17] The applicant initially sought particulars or at least a generalized sense of what motivated the source to provide information. After discussions with the crown, counsel for the applicant was content to proceed on the basis that the source was motivated by the prospect of receiving something in return for information without further specifics. It was agreed that counsel could make meaningful submissions based on hypothetical possibilities related to motive, including:
i. monetary;
ii. consideration for outstanding charges against the source;
iii. consideration for outstanding charges against someone else.
LEAVE TO CROSS-EXAMINE THE AFFIANT
[18] Pursuant to R. v. Pires; R. v. Lising, 2005 SCC 66, the applicant sought leave to cross-examine the affiant on certain issues. After hearing submissions, I ordered that cross-examination be permitted in regard to the following:
a) the assertion in the ITO that the source had proven to be reliable and accurate in providing information to the police; and
b) the basis for seeking a telewarrant rather than a personal attendance before the authorizing justice.
WAS THE INFORMATION PROVIDED BY THE CONFIDENTIAL INFORMANT CREDIBLE, COMPELLING AND/OR CORROBORATED?
[19] When the police rely on information from a confidential source, consideration must be given to whether the information is compelling, credible, and/or corroborated by other aspects of the police investigation. These are not discrete categories. Weaknesses in one area may be offset by strengths in another. See R. v. Debot, [1989] 2 S.C.R. 1140.
Credibility – Criminal Record of the Confidential Source
[20] The redacted ITO refers to unspecified criminal convictions of the source. The unredacted ITO includes a very brief and very incomplete list of the convictions. There is no mention of the sentences imposed. The affiant did not attach a copy of the complete criminal record as an appendix to the ITO. The affiant deposed that the source “has no criminal charges or investigations involving him/her that would cause the affiant any concerns about his/her honesty or character.”
[21] On the Garofoli application, counsel for the applicant sought one or both of the following:
Further information as to the source’s criminal record. If not specifics then at least the categories of the prior convictions.
Leave to cross-examine the affiant on his lack of concern for the honesty of the source related to the criminal record.
[22] The crown opposed both of these requests based on a concern that any further information related to the source’s criminal record could narrow the pool or identify the source.
[23] I declined to order that further details of the criminal record be provided. I also declined leave to cross-examine the affiant related to the source’s criminal record. Courts have recognized that even the smallest of details may provide an accused person with all he needs to identify the source. See R. v. Omar, 2007 ONCA 117 at para. 42.
[24] Notwithstanding the lack of further information related to the criminal record, it was still open to counsel for the applicant to make meaningful submissions based on various hypothetical possibilities. These would include the following:
a) types or categories of offences i.e.: firearms, drugs, dishonesty, administration of justice;
b) length of the record and the number of convictions;
c) sentences imposed; and
d) recency of convictions.
[25] The various hypothetical combinations of these factors could assist the reviewing justice in assessing the affiant’s comments related to credibility of the source.
[26] The details of any criminal convictions are an important aspect of assessing the credibility of a confidential informant. There is no valid reason for withholding any of these details from the authorizing justice. Any concerns related to informer privilege can be addressed by redactions at the disclosure and review stage. Attaching a complete copy of the criminal record of the confidential source as an appendix to the ITO is easily done and is clearly the best practice. The failure to do so may well raise serious issues on review.
[27] On the Garofoli motion, a complete copy of the criminal record of the source was filed as an exhibit and sealed. Based on concerns related to informer privilege, my comments on the record will be of necessity imprecise. What is clear is that the redacted portion of the ITO does not present a fair or accurate summary of the record. There is a bare minimum in the redacted portion that at least alerted the authorizing justice to aspects of the record relevant to credibility. The problem on review lies in assessing the affiant’s assertion that there was nothing in the record that raised concerns about the honesty or character of the source.
[28] In my view, the authorizing justice did not receive a fair or accurate summary of the extent and nature of the criminal record. The warrant may well have been authorized if the complete details of the record had been disclosed at first instance. It is no surprise that confidential sources who provide information related to crimes often, if not always, have prior criminal convictions and are themselves living a criminal lifestyle. A confidential source may have a long and recent criminal record and still be credible depending on all the circumstances. There is a distinct danger that a summary of a criminal record will not provide an accurate picture of the relevant background of the informant. The inclusion of information that might militate against granting the warrant is an indicium of good faith. See R. v. Martens, 2004 BCSC 1450 at paras. 55-57.
[29] Failure to include such information, or providing an inadequate or misleading summary of such information, is the converse of good faith. All of this could be avoided by appending a copy of the complete record to the ITO.
[30] In cross-examination, the affiant indicated that he received some unspecific information from Detective Campoli that the confidential source has provided reliable information in the past. He recalled being told of two prior incidents involving drugs but no further details. This vague information adds little to the credibility and reliability of the confidential source.
[31] After a review of the unredacted ITO and the details of the criminal record, the personal credibility of the source can best be described as very poor. This includes consideration of the illicit drug purchases by the source that were disclosed in the redacted and unredacted ITO.
Compelling
[32] The confidential source provided very specific information in the unredacted ITO related to his own purchases of drugs from the accused on various occasions within a specified time frame. This information revealed that the accused was engaged in drug trafficking activities from his residence.
[33] Detailed information about criminal activities by a target based on first hand observations within a specified time frame has been regarded as “compelling” in other cases. See R. v. Daniels, 2015 ONSC 283 at para. 48, and R. v. Rocha, 2012 ONCA 707 at para. 28.
[34] A photo of Arrindell Sean Ovid was shown to the informant. He identified the man as “Sean” who had sold him drugs. The particular circumstances render this a “recognition” case rather than “identification”. See R. v. Spencer, 2008 ONCA 205 at para. 12.
[35] The combination of specific, first-hand information that links the applicant to drug dealing and the recognition of the person in the photo renders the information compelling.
Corroboration
[36] To constitute corroboration of a source’s allegations of criminal conduct, it is not necessary that what is offered relate specifically to the criminality of the allegation. See R. v. Caissey, 2007 ABCA 380 at para. 23, affirmed 2008 SCC 65. The question is whether it strengthens a belief in the credibility or reliability of the source. Whether it does is to be determined on a consideration of the entirety of the evidence. See R. v. Choi, 2013 ONSC 291.
[37] Certain aspects of the confidential source information were confirmed by subsequent police investigation. This included the following:
Information from the source: “Sean” sold drugs from his residence at 2014 Martingrove Road. The number 56 is nailed into the brick at the front. Sean is a male black, approximately 38 years of age.
Information confirmed by check of police databases: A male black named Arrindell Sean Ovid with a date of birth December 19, 1969 has resided at 2014 Martingrove Road, Unit # 56 for several years. On March 18, 2006, he was arrested at his residence and charged with trafficking in cocaine.
[38] Counsel for the applicant produced a photo from disclosure of the number “56” at the front of the applicant’s residence. The number is affixed to the front of the building but does not appear to be nailed into brick (as described by the informant). I do not view this as a material discrepancy that detracts significantly from the accuracy of the information.
RESORT TO THE TELEWARRANT
[39] In R. v. Daniels, (supra), Justice Kenneth Campbell referred to the statutory requirements for the issuance of a telewarrant at paragraphs 10-14:
[10] Under s. 11 of the Controlled Drugs and Substances Act, a justice may, in certain defined circumstances, issue a warrant authorizing a peace officer to search a place for controlled substances. Such warrants may be issued on ex parte applications supported by “reasonable grounds.” According to s. 11(2) of the Controlled Drugs and Substances Act, for the purposes of such ex parte search warrant applications, an information may be submitted “by telephone or other means of telecommunication in accordance with s. 487.1 of the Criminal Code, with such modifications as the circumstances require.” It is apparent, therefore, that a telewarrant may be issued under the Controlled Drugs and Substances Act, provided that the ITO submitted in support of such an application is “in accordance” with the requirements of s. 487.1 of the Criminal Code.
[11] According to s. 487.1 of the Criminal Code, a peace officer may properly resort to the telewarrant procedure to obtain a search warrant whenever the officer believes that an indictable offence has been committed and it would be “impracticable” for the officer to “appear personally before a justice” and make the application for a search warrant in the usual fashion.
[12] As outlined in s. 487.1(4) of the Criminal Code, an “information that is submitted by telephone or other means of telecommunication” seeking a telewarrant, “shall include” a number of different statements justifying the issuance of the requested telewarrant. One of these mandatory statements is “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.”
[13] According to s. 487.1(5) of the Criminal Code, a justice may thereafter issue the requested telewarrant if he or she is satisfied that the information submitted by telephone or other means of telecommunication: (a) is in respect of an indictable offence and “conforms to the requirements” of s. 487.1(4); (b) “discloses reasonable grounds for dispensing with an information presented personally and in writing;” and (c) discloses the necessary “reasonable grounds” for the issuance of the warrant.
[14] The jurisprudence on the meaning of the term “impracticable” in this legislative context suggests the creation of a relatively low threshold standard, which imports a large measure of practicality and common sense. According to the authorities, the term “impracticable” requires that personal attendance before a justice be more than merely inconvenient for the affiant, but it need not be impossible for the affiant. The term “impracticable” requires, in short, that personal attendance before a justice be very difficult or not practical for the affiant in the circumstances.
WHAT IS THE EFFECT OF A FAILURE TO PROVIDE SUFFICIENT GROUNDS OF IMPRACTICABILITY FOR RESORT TO A TELEWARRANT?
[40] Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights unless the person charged can show that the warrant was obtained through the use of false or deliberately misleading information. Obtaining the warrant generally militates in favour of admitting the evidence. See R. v. Rocha, 2012 ONCA 707 at paras. 28‑29.
[41] Resort to the telewarrant process to obtain the necessary prior judicial authorization for a proposed search, without having properly demonstrated the necessary grounds justifying resort to the telewarrant process is not a serious breach of the Charter where the proposed search would likely have been judicially authorized in any event – either by means of a telewarrant or by a standard search warrant. See R. v. Daniels, 2015 ONSC 283 at para. 38, R. v. Lacelle, 2013 ONCA 390 at paras. 11‑12.
THE TEST ON REVIEW
[42] A search warrant is presumptively valid unless the applicant establishes there was no basis for its issuance. See R. v. Campbell, 2010 ONCA 558; at para 45, aff’d 2011 SCC 32.
[43] The reviewing judge does not substitute his view for that of the authorizing justice. If, based on the record before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing justice could have granted the authorization, the reviewing judge should not interfere. Evidence of fraud, non-disclosure, misleading evidence and new evidence are all relevant. However, the sole issue is to determine whether there continues to be any basis for the decision of the authorizing justice. R. v. Garofoli, at p. 1452.
[44] The issue is whether there was sufficient reliable information to justify the warrant. The question is whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. See R. v. Araujo, 2000 SCC 65 and R. v. Bisson, [1994] 3 S.C.R. 1097.
[45] The basis specified in the ITO for resort to a telewarrant on this application was as follows:
It is currently after 4:00 p.m. and no justices of the peace are working in the City of Toronto. The affiant is additionally concerned that given the nature of the drug trade, the additional delay in waiting until tomorrow morning may result in evidence being lost.
[46] The applicant did not refer to any specific inquiries he made as to the availability of a justice of the peace after 4:00 p.m. On review he testified that it was the practice of the Toronto Police Service to assume there was nobody available after 4:00 p.m. In my view, the police should make specific efforts to contact a justice and include those details where a telewarrant is sought. I find it difficult to accept that there were no justices working in the City of Toronto after 4:00 p.m. If that had been the sole basis for the telewarrant process, I would have found it to be inadequate.
[47] The ITO also referred to a concern that a delay in waiting until the next morning may result in evidence being lost. The unredacted ITO includes information that would support that concern. On that basis there were reasonable grounds to seek a telewarrant.
CONCLUSION
[48] The credibility aspect for the confidential informant is poor. However, the compelling and corroborated nature of the information provided the reasonable grounds to believe that offences had been committed and that evidence could be found at the target location. Considering the totality of the circumstances, I am persuaded that the information supplied by the confidential source provided reasonable grounds to believe that there were controlled substances and related items within the applicant’s residence on the specific date.
[49] RESULT: The application is dismissed. The evidence seized pursuant to the telewarrant is admissible at trial. I am grateful for the helpful materials and submissions provided by both counsel.
B. P. O’Marra, J.
Released: November 3, 2015
COURT FILE NO.: CR-15-90000544-0000
DATE: 20151103
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
SEAN ARRINDELL OVID
Applicant
GAROFOLI RULINGS
B. P. O’Marra, J.
Released: November 3, 2015