R. v. Fleming, 2015 ONSC 7325

CITATION: R. v. Fleming, 2015 ONSC 7325

COURT FILE NO.: 7562/15

DATE: 2015-12-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WILLIAM LAWRENCE FLEMING

Applicant

M. Jones for the Crown

T.P. Waltenbury, for the Applicant

HEARD: August 11, 12, 13, and October 8, 2015

REASONS ON “GAROFOLI” APPLICATION

A.D. KURKE, J.

[1] The Applicant is charged with five counts of Trafficking Cocaine, and four counts of Possessing Property Obtained by Crime. Evidence for the charges before the Court derives from interactions between a police agent and the Applicant that were recorded by Sault Ste. Marie (“SSM”) police pursuant to a Part VI consent Authorization.

[2] The Applicant alleges a violation of s. 8 of the Charter by reason of issues with the facial and sub-facial validity of the Information to Obtain (“ITO”) on which the Authorization hinges.

[3] In particular, the Applicant alleges that the ITO, either in its original form, or with parts excised and supplemented to account for police errors, misstatements and omissions, does not offer Reasonable and Probable Grounds (“RPG”) for the Authorization to have issued.

[4] If this Court decides that the ITO did offer sufficient RPG to ground the Authorization, the Applicant asserts that the Authorization should nevertheless be quashed. He complains that police were either deliberately misleading or “grossly negligent” in their manner of collecting evidence for the ITO and presenting it to the issuing judge. He asserts that the ITO was not full, frank, or fair, and contained misleading, unreliable and dated information. In sum, the Applicant asserts that this amounts to police misconduct that is subversive of the values that underpin the proper functioning of the ex parte system of prior judicial authorization.

[5] In terms of the facial validity of the ITO, the Applicant asserts that the affiant officer swore to grounds that were irrelevant to the issuance of the Authorization, and failed to swear to an essential aspect of the requisite grounds.

[6] In the event of a finding of breach of s. 8, the Applicant submits, pursuant to s. 24(2) of the Charter, that all evidence deriving from the wiretap, or gathered during its use, should be excluded at the trial of this matter.

Background to the Authorization

[7] The Authorization to intercept interactions between the Applicant and police agent Denis Bruyere was obtained by the Sault Ste. Marie Police Service (SSMPS), as part of its “Project Cooper”, which focused on securing the recording of evidence against the Applicant as a drug trafficker. Det. Cst. Richard Crema of the SSMPS drafted the ITO that led to the Authorization being granted on March 31, 2014.

[8] This was the second ITO in the investigation, as an earlier ITO generated an Authorization that could not be complied with for technical reasons. No concerns have been raised about the original Authorization which was not acted upon by police.

[9] Project Cooper, in the wording of the ITO (para. 13), was to be “propelled” by the information and cooperation of the police agent, Denis Bruyere. Bruyere came to police attention as an informant in January 2014. Bruyere provided information to police about the Applicant, and agreed to become an agent in Project Cooper. He entered into a “Service Provider Agreement” March 24, 2014 with the SSMPS that provided him with compensation for his assistance, and on the same date he signed a Consent to the interception of his private communications, and a Waiver of his informant privilege.

[10] The goal of Project Cooper was to utilize Bruyere’s “relationship” with the Applicant to enable him to make drug purchases from the Applicant. The Authorization was to allow Bruyere to attend those transactions with a recording device, to permit the transactions to be recorded, in order to secure an accurate record for the purpose of offering the best possible evidence of the transactions.

[11] Police conducted two videotaped interviews of Bruyere, in his own name, and on his solemn affirmation, on February 11, 2014; one relates to Bruyere’s background, and the other concerns Bruyere’s observations of the Applicant and his involvement in the drug trade. The interview concerning the Applicant was summarized into the ITO at paragraph 17. The one relating to Bruyere was summarized at paragraph 18. By way of amplifying or supplementing the record, and on consent, transcripts of the entire February 11, 2014 interviews were filed on the hearing as Exhibits 2 (statement summarized in para. 18) and 3 (statement summarized in para. 17). A further interview of Bruyere was conducted March 24, 2014, and summarized at paragraph 19 of the ITO.

[12] A very full Application Record has been put before me containing various supplementary items of evidence for the purpose of my assessment of the ITO. I will refer to various items in the Record in the course of these Reasons. Thus, for instance, Bruyere, Cst. Crema, and other SSMPS officers involved in Project Cooper testified on the Preliminary Inquiry into this matter. Aspects of their evidence have been put forward by the defence in the Application Record for consideration at this hearing.

The law with respect to review of the Authorization

[13] The onus lies on the Applicant to demonstrate the invalidity of the Authorization in this case, by establishing that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. This means, generally, that there were not reasonable grounds to support its issuance, which imports a standard of reasonably-based credibility. Such a standard demands proof beyond reasonable suspicion, to a point of reasonable probability, that “information concerning [drug trafficking] will be obtained through the interception”, in the wording of s. 184.2(3), which governs the inquiry in this case: Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Boussoulas, [2014] O.J. No. 452 (Sup. Ct.), at para. 21.

[14] In review of the Authorization issued by another Judge, my assessment is circumscribed by the Supreme Court’s decision in R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115. As stated at paragraph 56 of that decision:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

It is important to emphasize that this is not a hearing de novo in which I determine whether or not I would have issued the Authorization: R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 84.

[15] The standard for review has been usefully described in R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at para 40:

In reviewing the sufficiency of a warrant application… “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”.

See R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 84, where the Court emphasizes that the issue is whether the Authorization “could – not would – have issued”.

[16] In preparing an ITO, the affiant is directed by jurisprudence to be full, frank, and fair in the selection and presentation of the facts, so that the authorizing judge is met with evidence, and not intentional or unintentional advocacy or misrepresentation. Thus, see R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, at paras. 46-47, where the Court recommends that the ITO should be “not only full and frank but also clear and concise” (para. 46), and that it “should never attempt to trick its readers” (para. 47); and R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at para. 44.

[17] Any effort to advocate a prosecutorial viewpoint can lead to excision of offending material in the review of the ITO. In R v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No 115, the Court recommended the excision of inappropriate material or supplementing of omissions in an ITO in the ordinary course (at para. 56):

56 The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[18] Fish J., in R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, discussed considerations about the supplementing of omissions in an ITO in the following manner (at paras. 58-60):

58 In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

59 The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen's Bench, the judge who had the benefit of observing the Crown's witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer's selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

60 The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the Court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes. Likewise, where, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO.

[19] However, the review is not to be conducted as a trial, at which the truth of the allegations is explored in detail. Only erroneous information is excised, not information that is correct or that contradicts other information in the ITO, or with which the reviewing judge does not agree: R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 86.

[20] There is appellate authority for stronger remedies than the “reading out” of inappropriate inclusions and amplification of the record by supplementary evidence. In appropriate circumstances, where police deliberately set out to deceive the authorizing judge or cavalierly ignore their duty of fairness, such conduct can amount to a subversion of the values that underlie the ex parte system of prior judicial authorization. In such a case, an authorization may need to be set aside to protect the integrity of the process: R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492 (C.A.), at paras. 43, 89; R. v. Colbourne, 2001 4711 (ON CA), [2001] O.J. No. 3620 (C.A.), at paras. 37-45; R. v. Kesselring, 2000 2457 (ON CA), [2000] O.J. No. 1436 (C.A.), at paras. 31-33.

[21] Taking into account the editing out of erroneous or misleading material, and the filling out of material improperly omitted from the ITO, the issue on a s. 8 review of a prior judicial order is whether there remains “any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed”: so R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40.

[22] In addition to the police duty to present the evidence in the ITO fully, frankly, and fairly, the assessment of grounds in an ITO focuses on the reliability and credibility of the information contained therein.

[23] Much of the jurisprudence in the area of assessing the reliability of the information in an ITO focuses on anonymous or confidential information, as that is generally the context in which such assessments are conducted on sub-facial attacks of warrants or authorizations, that is, an attack that goes behind the ITO "to attack the reliability of its content": R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, at para. 50. In this regard, the leading decision is R. v. Debot, 1989 13 (SCC), [1989] S.C.J. No. 118, which sets out factors for consideration in determining whether a tip from an informant can safely be relied upon. At para. 53, Wilson J. set out criteria that focus the inquiry, collectively now known as the “three c’s”:

1. Whether the tip was compelling;

2. The credibility of the source of the information; and

3. Confirmation of the tip through police investigation.

See also R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115, at para. 68, which advances as elements for consideration the degree of detail in a tip, the source of an informer’s knowledge, and other indicia of the informer’s reliability.

[24] The assessment is based on the totality of circumstances, so weaknesses in one area may be made up for by strengths in another. In R. v. Hosie, 1996 450 (ON CA), [1996] O.J. No. 2175 (C.A.), at para. 15, the Court quotes Debot: “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater…”.

[25] “Compelling” information can include, among other things, details about criminal activity from personal observation by the informant: R. v. Rocha, 2012 ONCA 707, at para. 28; R. v. Ovid, 2015 ONSC 6563, at para. 33. In R. v. Lewis, 1998 7116 (ON CA), [1998] O.J. No. 376 (C.A.), at para. 19, compelling information and corroboration can make up for a source whose credibility cannot be tested.

[26] Corroboration of an informant does not need to relate only to criminal aspects of the information provided. Instead, the issue is whether the corroboration, whatever it is, strengthens belief in the credibility or reliability of the informant: R. v. Green, 2015 ONCA 579, at para. 29; R. v. Caissey, 2007 ABCA 380, at para. 23, aff’d 2008 SCC 65; R. v. Ovid, 2015 ONSC 6563, at para. 36.

The sub-facial validity of the Authorization

[27] The Applicant’s concerns about the validity of the Authorization in this case stem, for the most part, from considerations relating to frailties in information provided to police by Bruyere, in the investigation (or lack thereof) by police into Bruyere or information provided by Bruyere to police, or in the manner of presentation or omission of information by police to the authorizing judge in the ITO.

[28] The Applicant complains that nothing in the ITO indicates any reason by police to consider Bruyere to be reliable and credible. There is no indication of a track-record of prior reliable information, or an indication of arrests of other suspects or seizure of drugs or firearms. This focus by the Applicant depends on Bruyere’s status in the ITO. Certainly, these concerns must loom larger if Bruyere is a confidential informant, given the focus of jurisprudence on the “three c’s”.

Bruyere: confidential informant?

[29] Accordingly, a proper assessment of this submission requires an analysis of whether Bruyere’s information should be considered as coming from a confidential source.

[30] When the Ontario Court of Appeal in R. v. Hosie, 1996 450 (ON CA), [1996] O.J. No. 2175 (C.A.), at para. 15, quotes from Debot that: “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater”, the focus is clearly on “an informant whose credibility cannot be assessed”, that is, a confidential informant (CI). This kind of source, whose right to anonymity protects his identity from disclosure, is very different from a normal witness, whose credibility is more susceptible to assessment because his identity is known.

[31] In the Applicant’s submission, Bruyere is to be considered a CI, and the reception of his evidence falls to be assessed under the criteria set out by Wilson J. in Debot. The Crown submits that Bruyere’s was not a CI, but rather that he should be viewed as a witness.

[32] The Applicant argues that on the date Bruyere spoke with police and provided them in two interviews with the bulk of his information relating to this investigation, February 11, 2014, Bruyere had not yet waived his informer privilege. According to Cst. Crema, on February 11, 2014 Bruyere was in the course of being “cultivated” from CI into his new role as police agent. He only waived his informer privilege March 24, 2014. So in the Waiver of Informer Privilege form that stands as Appendix “F” to the ITO, paragraphs 1 and 2 indicate that information given by Bruyere to police between January 1, 2014 and February 28, 2014 was provided by Bruyere “as a confidential informer with the expectation that [his] identity would not be revealed and the information [he] provided would attract informer privilege in the courts”.

[33] In order to assess the force of the Applicant’s argument, it is necessary, at least in brief overview, to consider the nature of confidential informants, and the armour of anonymity that their status attracts.

[34] It is fundamental to CI status that the informer is entitled to remain anonymous, and that that anonymity must be protected and maintained by the courts. Anonymity is fostered as a matter of public policy both to protect the safety of the informant and to encourage persons to disclose to the authorities information important for effective police investigations: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at paras. 9-14.

[35] The confidential nature of the information passed by the informant begins with a promise by police of anonymity. In essence, the police promise of anonymity is the “quid” that is exchanged for the “quo” of information from the informant. So important to the sound functioning of society and of the justice system is the rule regarding informer privilege, that it is subject only to narrow exceptions and then only in extreme circumstances. “In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it.”: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at paras. 10-13, 14.

[36] Of necessity, that anonymity requires the suppression of details about the informer and the informer’s antecedents that could allow someone to deduce the identity that has been protected from disclosure: R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.), at para. 49.

[37] On the other hand, anonymity is not possible if the informer is a material witness to a crime, or where an informer is an agent provocateur. In both such cases, the informer’s identity must be disclosed: R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at paras. 37-40; R. v. Babes (2000), 2000 16820 (ON CA), 146 C.C.C. (3d) 465 (Ont. C.A.), at para. 10. In addition, anonymity is forfeited on waiver by the informer of his or her privilege: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at paras. 11, 15-16.

[38] Confidentiality about identity is therefore central to the notion of the CI, has an obvious impact on the assessment of information deriving from a CI, and is essential to the tests developed by the courts for assessing the reliability of the CI.

[39] It is my view that Bruyere is not to be treated as a CI in the assessment of his evidence in deciding on the validity of the ITO in the circumstances of this case. It is further my view that the operative point in time for determining Bruyere’s status for the purpose of assessing RPG in the ITO is at the time that his information was being assessed by the authorizing judge. I arrive at these conclusions for the following reasons:

a. The “Waiver of Informer Privilege” form at Appendix “F” of the ITO was signed by Bruyere on March 24, 2014, prior to the presentation of the ITO to the authorizing judge for consideration. Any CI status on Bruyere’s part was gone, and acknowledged by Bruyere to be gone, at the time the ITO was being considered by the authorizing judge.

b. It is apparent from early in police discussions with Bruyere that the police intention was to use him as an agent, rather than as an informer.

i. On February 11, 2014, Detective Sergeant Chiapetta contacted Cst. Crema to prepare an ITO for a consent wiretap (ITO para. 7).

ii. Bruyere’s statements on February 11, 2014, were taken on video under solemn affirmation, and after warnings about the penalties involved for knowingly misleading police (ITO paras. 17 and 18, Exhibits 2 and 3). This stands out as remarkable procedural background to getting information from someone who is merely a CI, and is more akin to a “KGB” statement than an informant interview.

iii. Bruyere had met with Dr. Peter Collins, a forensic psychologist, on February 17, 2014, to assess his suitability as a police agent (ITO paras. 22 and 23).

c. At no point in the ITO is Bruyere’s identity obscured. No attempt is made to protect Bruyere’s anonymity. This will have been apparent to the authorizing judge.

d. The Waiver speaks of Bruyere as a “potential witness”. In the context of Project Cooper, Bruyere’s role as agent and material witness would necessarily result in a loss of his informer privilege in any event. Project Cooper rendered Bruyere a potential witness, and his identity therefore a matter for disclosure.

e. Bruyere’s information is set out in an entirely different area of the ITO from information derived from Confidential Informants in the case. CI#1, CI#2, and CI#3 are discussed in paragraphs 25 to 44 of the ITO, under the heading: “Confidential Informant Information”. It is apparent that Bruyere fell into, and was intended to be seen by the authorizing judge to fall into, a different category.

[40] As an agent – a witness whose information is set out under his own name in the ITO – and not a CI, Bruyere’s information simply does not require the same degree of skepticism as information deriving from an anonymous source: see, for example, R. v. Babes (2000), 2000 16820 (ON CA), 146 C.C.C. (3d) 465 (Ont. C.A.), at para. 47. I will review below some issues that have an impact on Bruyere’s credibility and reliability, but it must be remembered that those issues play against the backdrop of a person whose identity is known, and whose lifestyle, addictions, and criminal record were provided, and, to some extent at least whose criminal antecedents and associations were divulged, to the authorizing judge.

[41] Bruyere falls to be assessed more in the context of a witness. While there are issues that cause concern relating to his credibility and reliability, his information need prove nothing beyond a reasonable doubt for the purpose of this exercise.

A misleading picture by Bruyere and of Bruyere?

[42] The Applicant submits that Bruyere’s information to police was unreliable in numerous respects, and that the police either deliberately or negligently failed in their duties to present information from and about Bruyere in a full, frank and fair way. Thus, it is the Applicant’s further assertion that the ITO was written in a style that presented a partisan, misleading and incomplete picture of events to the authorizing judge. As a result, Bruyere and his information cannot sufficiently ground the Authorization, or police misconduct or negligence merits the quashing of the Authorization. As these issues overlap to a great degree, I will consider them together.

Minor issues

[43] As a preliminary example of the issues raised by the Applicant, he complains that in Bruyere’s February 2014 interviews, Bruyere did not disclose to police an outstanding Assault charge in Sault Ste. Marie when asked about outstanding charges. However, Bruyere explained to police on March 24, 2014 that on the date of the earlier interviews, he was under charge for Assault, but had agreed to a peace bond, and had pleaded not guilty to the charge. Since he believed that he was not guilty, he had not mentioned it at the earlier interview. That explanation found its way into para. 19 of the ITO, and Bruyere’s outstanding charges were set out in Appendix “D” to the ITO. The authorizing judge was therefore able to assess Bruyere’s reliability on this issue; police hid nothing.

[44] The Applicant points out that much is summarized from Bruyere’s statements into the ITO that consists of nothing but Bruyere’s suspicions about Fleming, or unsupported remarks, or conjecture, creating an incomplete and inaccurate picture.

[45] But such inclusions stand out in the ITO, and can be easily dealt with and, if appropriate, disregarded. Cst. Crema summarized more of Bruyere’s statements into the ITO than he perhaps should have, but it is far easier for courts to require of police that they be full and frank, but also concise without omitting relevant information, than it is for police to walk the line drawn by such direction.

[46] Before moving on to larger concerns raised by the Applicant on this score, I provide a few examples that demonstrate, in my view, both Cst. Crema’s attempts to be as fair as possible, but also the harmlessness of the overinclusion of information that could be “prejudicial” or the omission of what could be “exculpatory”. Baseless conclusions or assertions are easily spotted, and excised, in favour of actual facts provided in the ITO, and omissions often tend to involve judgment calls for which police should not be found negligent or deliberately misleading.

a. Thus, para. 17g of the ITO is an assertion by Bruyere about the Applicant’s double life: going to NA meetings, and then dealing drugs. No one could see such an assertion as anything but an opinion of Bruyere’s, which falls to be assessed by actual facts put forward in the ITO.

b. In para. 17h, Bruyere claims that the Applicant trusts him, so he can go to the Applicant and buy drugs. By itself, such a statement offers no reason for anyone to accept it. However, para. 20 of the ITO, which describes a March 26, 2014 discussion between Bruyere and the Applicant about the sale of drugs, demonstrates that the Applicant did trust Bruyere. Bruyere’s apparently baseless assertion of this fact on February 11, 2014 is in fact borne out by the events of March 26, 2014. Both items are set out in the ITO.

c. In paragraph 17i, Cst. Crema summarizes that Bruyere said “it’s obvious [the Applicant] is a drug dealer because all of the money that [the Applicant] has, and that [the Applicant] doesn’t work and has nice vehicles.”

i. The Applicant objects that Cst. Crema did not somewhere put in the ITO the information that Bruyere had told him, that the Applicant had won $50,000 in the lottery, and had bought a car, as information that could neutralize Bruyere’s suggestion about the source of the Applicant’s money;

ii. On the other hand, the affiant was careful to summarize into the ITO the Audi and the pickup truck Bruyere had seen the Applicant use (para. 17p), and Bruyere’s indication that the Applicant did interlocking stone work (para.17q). It cannot be said that Cst. Crema was insensible of his duty to offer detail and to present the facts fairly, or to include facts that told against his thesis that the Applicant’s funds came from drug dealing.

iii. While Cst. Crema perhaps should have included the detail of the $50,000 lottery win, as at least a partial explanation of the Applicant’s apparent affluence, I note that para. 17i, devoid as it is of any detail or substance, cannot have contributed significantly to RPG in any event. I do not find the omission by Cst. Crema of the alleged lottery win to be of any moment.

d. In para. 17j of the ITO, Bruyere states that he “knows” the Applicant to be a drug dealer as he was one himself. This assertion hinges, I suppose, on the playground principle that “it takes one to know one”. Cst. Crema highlighted his own scepticism about Bruyere’s claim by setting off the word “knows” with quotation marks. The supposition was Bruyere’s, and the authorizing judge will not have given weight to such claims, just as I do not, and Cst. Crema seemingly did not.

e. Another passage in the ITO that afford no grounds to the authorizing judge would be para. 17r, in which Bruyere asserts that to buy drugs from the Applicant, you just have to call him. This claim is supported by no additional facts, and is plainly attributable to a deduction by Bruyere based on his conversation with Robinson, and thus rendered harmless.

Bruyere’s close, trusting relationship with the Applicant

[47] The Applicant objects to what he sees as the ITO’s misleading portrayal of a close relationship between Bruyere and the Applicant, in order, it is suggested, to improperly convince the authorizing judge to believe that Bruyere will be able to purchase drugs from the Applicant. The Applicant argues that such claims represent a failure in the affiant officer’s duty to present the facts fully, fairly, and frankly.

[48] Thus, at para. 11 of the ITO, Cst. Crema describes that police want to use Bruyere’s “relationship” with the Applicant to further Project Cooper. He claims that Bruyere is “already in a close circle with” the Applicant which will allow him to increase his contact to the point of attempting to purchase cocaine from the Applicant (para. 67). Bruyere has known the Applicant for a long time – over three years, and Bruyere believes that the Applicant trusts him (para. 70, and para. 17h). Bruyere has “an ongoing relationship with” the Applicant (para. 74).

[49] However, Cst. Crema also summarized the following evidence into the ITO from Bruyere’s interview:

a. Bruyere met the Applicant through Narcotics Anonymous some three years before his February 2014 police interviews (para. 17a);

b. Bruyere doesn’t know the Applicant’s family, or if he has a girlfriend (17e);

c. The Applicant never told Bruyere that he sells drugs up to the February 11, 2014 interviews (17k);

d. Bruyere does not know the Applicant’s phone number (17o);

e. Bruyere was aware that the Applicant does interlocking stone work, and just graduated from Sault College, because the information was posted on Facebook (17q); and

f. The Applicant met with Bruyere on March 26, 2014, and the two spoke of the Applicant selling cocaine to Bruyere. Cost and availability issues were discussed (para. 20).

[50] Regardless of the word used by Cst. Crema to describe the “relationship” between Bruyere and the Applicant, from the actual information in the ITO it is apparent that Bruyere and the Applicant knew each other, and were close enough for the two to discuss drug transactions shortly before the Authorization was granted, which necessarily implies a certain level of trust on the Applicant’s part. It must have been apparent to the authorizing judge that Bruyere and the Applicant had not socialized much together prior to the Authorization.

[51] I find that Cst. Crema’s characterization of what existed between Bruyere and the Applicant as a “relationship” could not have misled the authorizing judge into believing that it was more than it was, and was not intended to do so. Indeed, an argument such as this one, or its parallel, that complains about Cst. Crema’s characterization of police as “cultivating” Bruyere from CI status to agent, when it was Bruyere who offered police his services as agent, must fail in the context of the actual evidence of the “relationship” or the “cultivation” that is in the ITO.

Kevin Robinson’s information to Bruyere

[52] As a problem on a larger scale, the Applicant points to Bruyere’s claim to have been told about the Applicant’s drug dealing by Kevin Robinson (ITO, para. 17a, b). This concern, that involves varying recollection about dating, and related argument about the staleness of information, does not, in my view, rise to any level that detracts from the existence of RPG, even when supplemented by additional information on the hearing of the Application.

[53] The Applicant points out several problems with the information provided by Bruyere about Kevin Robinson, who is an essential link in Bruyere’s narrative to prove that the Applicant was dealing drugs:

a. The Applicant notes that Bruyere first indicated that he learned Robinson was dealing drugs for the Applicant a “couple of years” after meeting the Applicant (ITO, para. 17b). However, Bruyere stated that he met the Applicant “approximately three years ago” (ITO, para. 17a) from the interview date of February 11, 2014. That means, argues the Applicant, that the discussion took place about February 11, 2013, which would make the Robinson information “stale” in March 2014 when police were seeking the Authorization.

b. Moreover, in his March 24 interview, Bruyere puts the date of the conversation with Robinson “a couple weeks before Christmas 2013” (ITO, para. 19a).

c. After this conversation, Bruyere spoke with the Applicant’s acquaintance Fogg, to let him know what Robinson was saying (ITO, para. 17l).

d. But the Applicant then refers to Bruyere’s testimony at the Preliminary Inquiry, in which Bruyere testified that he “thinks” he told Fogg about Robinson when the two were working together at Detour Gold, where Bruyere had last worked in October 2013. This, we are told, plays havoc with Bruyere’s corrected dating of the conversation between Robinson and Bruyere to December 2013.

[54] Such difficulties are more apparent than real. Bruyere’s issues in dating the Robinson conversation were made known to the authorizing judge. Cst. Crema cannot be taxed with being deliberately misleading for not alerting the authorizing judge to what Bruyere would say at the Preliminary Inquiry long after the ITO had secured the evidence that led to the need for a Preliminary Inquiry. In any event, Bruyere prefaced his dating of his discussion with Fogg with wording (he “thinks”) indicative of an uncertainty about that point. Again, the assessment of RPG on the review is not to be conducted as a trial.

[55] The Applicant goes on to attack the affiant for including in the ITO information gleaned from the conversation with Robinson, as it is stale information which should not have been put forward for RPG. In the Applicant’s submission, even a three month gap between December 2013 and March 2014 makes the information stale. Respectfully, I do not agree. While that may be so in a case involving a high-risk takedown of a man alleged to have a handgun in his possession, I do not see the same concerns in a situation where it is alleged that the Applicant’s drug dealing has been ongoing for years, and in the context of para. 20 of the ITO, which itself carries that drug dealing forward to March 26, 2014: thus, contrast R. v. Bassett, [2008] O.J. No. 3456 (Sup. Ct.), at para. 19.

A police duty to investigate or find corroboration?

[56] The Applicant raised as a concern going towards gross negligence on the part of police their failure to investigate Bruyere’s claims further. In the Applicant’s submission, where the police intend to surreptitiously record the Applicant’s conversations, they must take greater care to ensure the existence of RPG, by continuing their investigation into their main informant and his information. The Applicant points to evidence given at the Preliminary Inquiry, that Staff Sgt. Greco did not speak with the other lead investigator on Project Cooper, Det. Sgt. Chiapetta, about looking for corroboration for Bruyere, and that Det. Sgt. Chiapetta did not see the need for surveillance on the Applicant before seeking the Authorization.

[57] The Applicant suggests various sources of information that police should have examined in order to assess Bruyere’s credibility and reliability, so as to avoid subsequent accusations of police “laxity” and “lassitude” by reviewing courts:

a. As para. 10 of the ITO states that Bruyere had previously been a CI, then police could have consulted his police handler;

b. Given that Bruyere had spent his life in Ottawa, and had there accumulated much of his criminal record, police could usefully have consulted with the Ottawa Police Service about their knowledge of the Applicant. Indeed, had the SSM police done so, they would have discovered that Bruyere’s breach of bail conviction involved a breach within hours of his release from custody (See Application Record, Tab 2N). This information came to light only once requested by Applicant’s counsel as disclosure.

c. SSM police could also have learned from the Ottawa Police Service that Bruyere had told Ottawa police what he knew about a murder suspect in a different case because “it was the right thing to do”. He also admitted that he wanted the man out of his life because of a $7500 drug debt. Thus, according to the Applicant, Bruyere presented in Ottawa with the same suspicious motives he professed against the Applicant: money and altruism (ITO, para. 15).

d. SSM police could have searched for an online profile for Bruyere to acquire more information about him.

e. In the context of the argument about Bruyere’s discussion with Robinson, the Applicant argues that the police had a “duty to investigate”, given the staleness of the information, and Bruyere’s patent money motive. The Applicant also suggests that police should have questioned Bruyere more deeply concerning details of his conversations with Robinson and with Fogg, should have conducted surveillance on the Applicant and Robinson, and should have looked for links between named persons in police records.

[58] For this argument, the Applicant points to R. v. Sutherland, 2000 17034 (ON CA), [2000] O.J. No. 4704 (C.A.), at paras. 11, 12, and 14, where simple police investigation could have corroborated whether the appellant was wearing an identifiable stolen ring, in circumstances where the informant information was weakened by a highly publicized theft and a potentially vindictive informer.

[59] Although the absence of police investigation might be fatal in some situations, as in the Sutherland case, I do not find that to be so for the reason advanced by the Applicant. It is my view that the Sutherland decision exemplifies the risk that police run if they fail to look for corroboration of informant information. Simply put, in line with authorities from Debot onwards, the failure by police to advance corroborative evidence in the ITO may leave insufficient grounds to support the issuance of a warrant or authorization.

[60] I do not read cases such as Sutherland as establishing, as a principle of law, a duty on police to conduct an investigation in order to defeat later claims that their conduct subverted the system of prior judicial authorization through their negligence. If that were the state of the law, the endurance of a warrant or authorization would inevitably hinge only on the degree of inventiveness and after-the-fact analysis of counsel for the defence. And indeed, jurisprudence seems to state otherwise: R. v. Dew, [2011] MBQB 43, at para. 13; R. v. Drapeau, 2001 NBCA 68, [2001] N.B.J. No. 230 (C.A.), paras. 11-13; and compare R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, at para. 48, which posits “no legal requirement” for investigators even to further investigate by assembling affidavits from those with firsthand knowledge.

[61] I decline to craft a duty of investigation on police that would outstrip the current use of corroboration as one of three bases by which to assess the RPG offered by confidential informants. In my view, the current Debot assessment sensibly parallels another rule in the criminal law, established by the Supreme Court of Canada, that the Crown cannot generally be compelled to call a witness whom the defence claims as essential to the Crown’s case. Rather, the Crown’s decision not to call that witness may simply result in the Crown’s inability to prove its case beyond a reasonable doubt: R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 30, 55. Just so, if police choose not to seek corroboration for information central to an ITO, they risk seeing the Authorization that hinged on the ITO quashed on review.

Significant police omissions, according to the Applicant

[62] It is the Applicant’s position that police omitted substantial indicators of Bruyere’s unreliability through negligent inattention or through deliberate omission, in order to make Bruyere appear more credible to the authorizing judge.

[63] The Applicant points to the circumstances surrounding para. 20 of the ITO as extremely concerning on the score of Bruyere’s credibility:

a. In Volume 2 of the Application Record, at Tab 2N, there are police records concerning Bruyere’s prior convictions, obtained through disclosure request. One of those records relates to Bruyere’s conviction for Breach of Recognizance. The record indicates that Bruyere breached his recognizance on a charge the same day as his release from custody, by being at the residence of his alleged victim and communicating with her and another named individual. The Applicant submits that this record should have been included in the ITO as a powerful indicator of Bruyere’s unreliability, and one that SSM police would have known about, had they consulted their Ottawa colleagues before submitting the ITO. For reasons I set out above, I do not think that police were negligent in not seeking details of Bruyere’s criminal record, although this information must be taken into account, now that it is available. The conviction on the Breach charge, and Bruyere’s penalty of a small fine and probation for the breach, already form an entry in Appendix “D” to the ITO.

b. In another police record, from the Waterloo Police Service (Exhibit 1a on the hearing), Bruyere was named as complainant in a 2007 police investigation involving a female. Nothing came of the investigation, as Bruyere was noted by investigators as “Not reliable[.] Admitted to smoking crack for a week and no sleep for a week.” I do not see that this dated observation offers much assistance with respect to the matters at issue in the Project Cooper ITO.

c. Most telling, in the Applicant’s view, is paragraph 20 of the ITO. This paragraph describes Bruyere meeting with the Applicant on March 26, 2014 at about 2:30 in the afternoon. At this meeting, the Applicant agreed to sell cocaine to Bruyere at $1800 per ounce, on a day’s notice in advance of the purchase. While this is powerful information towards grounds to justify the Authorization, the Applicant points out the following features, which demonstrate both how unreliable Bruyere was, and that police omitted significant information from the ITO.

i. On March 24, 2014, Bruyere entered into a Service Provider’s Contract with the SSM Police Service, setting out Bruyere’s compensation, and listing conditions governing Bruyere’s behaviour during the term of the Project. That Agreement was mentioned in paragraph 24 of the ITO, and is included at Tab 2E of the Application Record.

ii. Under “Witness Obligations” in the Contract, s. 1.03 requires Bruyere to abide by the laws of Canada, unless otherwise directed by the police. Section 1.07 directs Bruyere not to associate with persons with a criminal record. Section 1.07 requires Bruyere to comply with all directions given by police in relation to the Project.

iii. Bruyere was told by Det. Sgt. Chiapetta to take no steps to contact the Applicant until directed by police, who were waiting for the Authorization, so that they could record all meetings, in order to secure the best evidence for subsequent judicial proceedings.

iv. Bruyere met with the Applicant on March 26, 2014 contrary to Det. Sgt. Chiapetta’s instruction, and contrary to the terms of the Contract. This issue was explored with Det. Sgt. Chiapetta at the Preliminary Hearing (Application Record, Tab 2P).

v. Paragraph 20 of the ITO, which sets out the fruits of this March 26, 2014 meeting, does not indicate that it took place contrary to Det. Sgt. Chiapetta’s instruction, and in contravention of terms of the Contract.

vi. As paragraph 13 of the ITO adverts to the central importance of Bruyere in Project Cooper by stating that “[t]his investigation will be propelled by the information and co-operation of a Police agent”, it is the Applicant’s position that Bruyere had not in fact cooperated with the instruction of Det. Sgt. Chiapetta or with the terms of the Contract, and that this level of unreliability should have been pointed out to the authorizing judge.

[64] Cst. Crema’s knowledge about that meeting between the Applicant and Bruyere was the subject of cross-examination of Cst. Crema on the Application. The following emerged from the testimony of the officer:

a. Cst. Crema believed that on or about March 24, 2014, Bruyere had been instructed by Det. Sgt. Chiapetta that he could speak with the Applicant, but not to order anything or commit CDSA offences. Police planned to record all discussions between the two about drugs once the Authorization was in place.

b. Cst. Crema originally learned about this meeting between Bruyere and the Applicant in discussion with Det. Sgt. Chiapetta at a meeting of investigators at the drug office on March 26. Det. Sgt. Chiapetta had debriefed Bruyere about his meeting with the Applicant, and Cst. Crema had looked at Det. Sgt. Chiapetta’s notes when he was redrafting the ITO after the first defective Authorization had been obtained, and adding paragraph 20.

c. Cst. Crema had a copy of the Service Provider Agreement when he drafted the ITO, but was not familiar with all of its terms.

d. Cst. Crema believed that Bruyere “may have overstepped” in his meeting with the Applicant, but did not commit any offence. At the meeting with Det. Sgt. Chiapetta at which the March 26 meeting was initially discussed, no one had any particular concerns about Bruyere’s conduct.

e. As Cst. Crema explained, he thought that Bruyere’s conduct was overzealous, but that that this overstepping did not affect his credibility or reliability, and so he did not mention that fact in the ITO. Not mentioning those aspects of things in the ITO was for him “not an intentional omission”, as he did not think them particularly relevant.

[65] I do not find Cst. Crema to have been grossly negligent or deliberately misleading in omitting from paragraph 20 of the ITO the facts demonstrating that Bruyere had “overstepped” his police instructions in setting up and conducting a meeting with the Applicant. I accept Cst. Crema’s testimony and find that his explanation for the omission not unreasonably distinguishes between reliability of conduct and of information provided.

[66] That said, in my view, the information should have been set out in the ITO, as, even though conciseness must be a priority, police should err on the side of over-inclusion where privacy interests are at play. In combination with the details of the Breach of Recognizance conviction, it causes sufficient concern in any assessment of Bruyere’s reliability, that an authorizing judge might need to scrutinize corroborating information more closely to ensure that there exist sufficient RPG to permit the Authorization to issue.

Conclusion on sub-facial validity: police misconduct

[67] I conclude that there are aspects of the information in the ITO that should be excised as not appropriately before the authorizing judge. I acknowledge that Bruyere presents with some challenges of reliability, based on information that supplements what was in the ITO, as brought out at the hearing of the Application. Nevertheless, I also take into account that Bruyere should be likened to a witness on solemn affirmation and not treated as a confidential informant for this exercise.

[68] I further conclude that the investigators were not negligent in their dealings with Bruyere or in not taking further steps to corroborate the information that he provided to them. I find as well that, while Cst. Crema omitted some information from the ITO that should have been included in the interests of a full, frank, and fair presentation, he had no intention to mislead the authorizing judge in his selection of material for inclusion, and he was not negligent in omitting some details that it would have been better to include.

[69] The Application to quash the Authorization on the basis of alleged police misconduct in the abuse of the system of prior judicial authorization is dismissed.

Sub-facial validity: Reasonable and Probable Grounds

[70] It remains to consider “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”.

Bruyere’s information

[71] By way of background concerning the police agent, the ITO at paragraph 15 indicates that Bruyere was born in Ottawa in 1967, and lived there his whole life. It sets out Bruyere’s criminal record including outstanding charges. The ITO states that Bruyere has offered his assistance to police for financial and altruistic reasons, in that order.

[72] In terms of grounds that remain from Bruyere’s statements to support the issuance of an Authorization, once the irrelevant, merely prejudicial or unsupported matters in the ITO are excised from consideration, and the facts in the ITO are amplified by the additional evidence put forward at the hearing, I find that the following facts go to RPG:

a. Bruyere met the Applicant through Narcotics Anonymous about three years earlier, when Bruyere came to Sault Ste. Marie (SSM).

b. A couple of years after meeting the Applicant, Bruyere saw an acquaintance, Kevin Robinson, selling drugs, and learned from Robinson that he was dealing drugs for the Applicant. Bruyere observed cocaine and money. Robinson was Bruyere’s girlfriend’s brother. From evidence that he gave at the Preliminary Inquiry, it is likely that Bruyere had been using drugs when he acquired this information.

c. Bruyere learned, from living with Robinson’s sister, that the Applicant had dropped off to Robinson “a couple ounces blow” (cocaine) and (he thought) a half pound of pot. Bruyere believed that the Applicant sells those two drugs. Robinson used his sister’s home as his stash house.

d. Bruyere learned from Robinson that when he was out of drugs, he did not have to wait long to get more from the Applicant. Robinson never waited too long to reload.

e. Robinson got drugs from the Applicant by calling him at any time. The Applicant either went to pick Robinson up at home, or they made arrangements to meet somewhere.

f. Bruyere had a “feeling” that if he went to the Applicant and asked to buy drugs, the Applicant would sell him drugs. “I know he trusts me.” I include this mere belief only for its contextual relationship to the much more significant events of March 26, 2014, described below.

g. The Applicant used to drive an Audi, but “now” drives a black pickup truck. Bruyere has seen the Applicant drive it.

h. Bruyere has seen the Applicant with money, but I must take into account that the Applicant told Bruyere at some point that he had won $50,000 on a scratch ticket. While a lottery win may account for Bruyere’s observation, it does not foreclose the possibility that the Applicant has money that derives from drug trafficking.

i. Bruyere knew, as a result of people talking and a Facebook post, that the Applicant does interlocking stone work and had just graduated from Sault College.

j. Bruyere knows of a male named Joshua Fogg who lives upstairs from the Applicant in the house the Applicant owns and lives in. Bruyere worked with Fogg, so he and Fogg were close.

k. Bruyere knows the house in which the Applicant and Fogg live, but does not know the name of the street.

l. After Robinson told him about the Applicant, Bruyere went to Fogg and told him that Robinson was “beaking off” about the Applicant. Fogg told him “Thanks. We’ll take care of it”.

m. Bruyere was not sure if Fogg was involved in selling drugs with the Applicant, and so he told police that he did not want to claim it was so when he did not know. He did tell police that Fogg drove the Applicant around.

n. Bruyere told police that he could get phone numbers from the Applicant and Fogg.

[73] Bruyere gave a further interview March 24, 2014, at which he indicated, among other things, that his conversation with Robinson about dealing drugs for the Applicant took place a couple weeks before Christmas 2013. Bruyere has testified that he thinks his discussion with Fogg about Robinson took place when the two were working together at a job at which Bruyere stopped working in October 2013.

[74] On March 26, 2014, Bruyere met with the Applicant at about 2:30 p.m. The Applicant agreed to sell cocaine to Bruyere for $1800 per ounce (28 grams). The Applicant told Bruyere that he would require a day’s notice in advance of the transaction. That price was the price no matter how many ounces were involved, whether one or ten. As a result of the evidence put before me on the hearing of this Application, I take into account that Bruyere set up that meeting contrary to police instruction, and contrary to terms of the Service Provider’s Contract between Bruyere and the SSMPS that required Bruyere to follow police direction.

[75] Throughout his interview concerning the Applicant, Bruyere acknowledged limitations in his knowledge, and indicated his desire not to state things with a certainty he did not feel. These things, which help define the limits of Bruyere’s information, were nevertheless included in the ITO. I believe that they assist in assessing Bruyere, as they display a cautious approach in providing information that is appropriate for a witness.

[76] Thus, Bruyere has not seen the Applicant with drugs, and has never purchased drugs from him. By February 11, 2014, the Applicant had never told Bruyere that he sells drugs. Bruyere is not aware of any stash houses used by the Applicant. He never saw the Applicant with drug paraphernalia or packaging. As amplified by the transcript of the full interview with police from February 11 (Exh. 3): when asked if he thinks Fogg is involved in selling drugs with the Applicant, Bruyere stated, “I don’t want to say yes or no because I’m not a hundred percent sure. I’ve never seen him do any transactions or anything so I wouldn’t wanna say yes when I don’t know.”

[77] From Bruyere’s February 11, 2014 interview that focused on himself, Cst. Crema summarized into the ITO the following details, that assist in assessing Bruyere’s credibility:

a. Bruyere was 46, and had been employed at Detour Gold Mine, but was currently out of work.

b. Bruyere was addicted to alcohol and cocaine.

c. Bruyere described various convictions on his criminal record: trafficking hash, cheque fraud, assault on his son by spanking him too hard, and break and enter, to fund his drug habit. He denied any other criminal activity in Sault Ste. Marie, or for the last ten years.

d. Bruyere described also selling crack cocaine when he was 35 years old, in whatever quantities his purchasers could afford. He was not arrested for this trafficking. He sold for a long time, about two ounces a night.

[78] In fact, Bruyere’s criminal record, which forms Appendix “D” to the ITO, showed also convictions for Breach of Recognizance, and on a different occasion, for Assault with a Weapon and Utter Threats. In addition, on February 18, 2014, when Cst. Crema checked Bruyere’s record, it indicated an outstanding Sault Ste. Marie charge for Assault on an adult female, for which Bruyere had been on bail at the time of his February interviews.

[79] In assessing Bruyere’s information, I take into account that Bruyere has a criminal record that includes an offence against the administration of justice, has substance abuse issues, had in the past been a drug dealer, and was less than forthright to police about the extent of his criminal record, and about the charge of Assault that was outstanding against him on February 11, 2014 when he gave his statements to police. He was convicted of breaching significant terms of a bail order shortly after release on bail on the Assault charge. He ignored police direction and the terms of the signed Service Provider’s Contract in setting up a meeting with the Applicant on March 26, 2014 to talk about buying cocaine. Bruyere had a strong money motive in working as a police agent.

[80] All of that said, I find that concerns about Bruyere’s credibility and reliability are not sufficient to detract in any significant way from the information that he provided to police in general about the Applicant, or about his March 26, 2014 meeting with the Applicant. Bruyere’s information is not that of a CI, but more closely akin to that of a witness under solemn affirmation. And indeed, on that basis, the information found in para. 20 of the ITO almost by itself provides sufficient grounds to justify the issuance of the Authorization.

[81] However, there are sufficient concerns about Bruyere’s reliability that corroboration should be looked for concerning the Applicant as a drug dealer who would be willing to sell drugs to Bruyere.

The Applicant’s background, according to police records

[82] Other information in the ITO adds grounds that the Applicant had been engaged in drug trafficking in the past.

[83] The Applicant’s criminal record, Appendix “C” of the ITO, shows convictions May 4, 2004 for three counts of Possession for the Purpose of Drug Trafficking, Simple Possession, five counts of Possession of Property Obtained by Crime, and Breach of Youth Probation. Police records concerning these convictions indicate that on March 24, 2004, a search conducted at the residence of the Applicant and another man discovered cannabis resin, bags of marijuana, and 4 one gram baggies of cocaine. These drugs were in a drawer with $160 cash. In the room was a bundle of cash totalling $620. Three cell phones and a pager were located and seized. The Applicant was on youth probation at the time.

The information from Confidential Informants

[84] The ITO was also supported by information from three confidential informants, named in the ITO as “Confidential Informant #1” (paras. 28-33), “Confidential Informant #2” (paras. 34-38), and “Confidential Informant #3” (paras. 39-44).

Confidential Informant #1 (CI#1)

[85] Cst. Crema himself was handler for CI#1.

[86] The ITO offers few indications of CI#1’s reliability. The ITO indicates that CI#1 assists police for money and “altruistic purposes”. Consideration is paid for seizures and arrests.

[87] CI#1 provided the following information:

a. On August 6, 2013, CI#1 advised that:

i. The Applicant has sources for marijuana and cocaine, according to what the Applicant told CI#1;

ii. The Applicant deals in significant quantities of the drugs;

iii. The Applicant drives himself on runs to collect drugs, and a few times used a GMC pickup truck;

iv. The Applicant also uses another male for runs;

v. The Applicant changes his phone number at least once a month.

b. On November 5, 2013, CI#1 advised:

i. Three or four weeks before, three Outlaws members, including one Mario Macedo, went to Brian Leclair’s residence on Old Goulais Bay Road in SSM. Leclair was with the Applicant, when the Outlaws members went there to tax Leclair and the Applicant for selling drugs in Sault Ste. Marie. The Applicant pulled out a submachine gun and he and Leclair told the Outlaws to “fuck off”. Leclair and the Applicant then threatened to kill the Outlaw members if they returned. The Applicant told this story to CI#1.

ii. That Macedo is a member of the Outlaws Motorcycle Club was corroborated by Det/Cst. Dubie, an officer seconded to the OPP Biker Enforcement Unit. Cst. Crema himself was aware that Brian Leclair’s brother Brent lives at 147 Old Goulais Bay Road, SSM. There is therefore police corroboration for aspects of this account.

iii. Two weeks prior to Cst. Crema’s discussion with CI#1, an Outlaw member brought up the tax issue again to the Applicant at a bar called Coch’s Corner, in SSM. The Applicant again told the Outlaw to “fuck off”, according to CI#1.

iv. CI#1 also advised that the Applicant just bought a new GMC or Chevrolet pickup truck, and was residing on Parliament Street in SSM. CI#1 observed this himself. A police check of the Applicant’s cellular phones found a number for Fleming that attached to 571 Parliament Street, SSM.

v. The Applicant told CI#1 that he opened a fake bricklaying company to launder drug money.

vi. The Applicant told CI#1 that he deals in bricks or kilos of cocaine and pounds of weed.

vii. CI#1 has personally observed that the Applicant sells cocaine for $1700 or $1800 per ounce, and weed for $1800 per pound. CI#1 further observed that the Applicant deals in a brand of weed called M39, that he gets from Montreal.

viii. The Applicant told CI#1 that he has a few stash houses around town.

ix. CI#1 observed, and the Applicant told him, that he sells aggressively for some months at a time, and then stops for a couple to a few months, so he does not get caught.

[88] CI#1’s information attracts belief from its compelling details, corroboration by police of incidental points, and its implication that CI#1 is someone placed rather close to the Applicant, and is someone in whom the Applicant confided.

[89] CI#1’s information is of significance, as it serves to corroborate Bruyere’s account in at least the following aspects:

a. The main drugs attributed to the Applicant’s drug business by this CI are cocaine and marijuana;

b. The Applicant deals in significant quantities of drugs. Kilos of cocaine and pounds of weed are mentioned, apparently sufficient to attract the attention of competing dealers. Those are the drugs that Bruyere indicates are sold by the Applicant;

c. The Applicant uses another male for his runs. In Bruyere’s account, this could corroborate Robinson’s involvement or Fogg’s part;

d. The Applicant’s recent purchase of a pickup truck corroborates Bruyere’s information in a minor way, about the Applicant’s vehicles;

e. The Applicant’s bricklaying business front correlates closely to Bruyere’s information about the Applicant’s interlocking stone work;

f. The price of cocaine by the ounce is virtually identical to that emphasized by the Applicant to Bruyere in their March 26, 2014 meeting, according to Bruyere.

Confidential Informant #2

[90] CI#2 is described as a repeat and reliable informant whose information has led to a single authorization of a single search warrant, three arrests, the seizure of controlled substances and firearms, and the arrest of persons on outstanding warrants. The ITO does not indicate whether these achievements occurred during one or more investigations. CI#2 informs for compensation, and is only paid for success. To protect his or her identity, his or her criminal record is not acknowledged or denied, as with the other CIs. I will presume a criminal record.

[91] A further promise of reliability is offered in para. 35 of the ITO, that this CI’s information “has been corroborated when comparing it to information received from other informants”. This assertion, baldly stated without any further supporting detail, affords no actual means of assessing this CI’s reliability, and I will not take it into account here or anywhere else that it occurs concerning any other CI.

[92] On July 25, 2012, CI#2 told Cst. Dubie that the Applicant was selling drugs from Studio 10 where Corey Guzzo was the disc jockey; CI#2 observed this himself that day. Cst. Dubie confirmed that Guzzo was working at Studio 10 at this period of time. CI#2 also observed Ken and Rickey Frigault, who were recognized by police as involved in the SSM drug subculture, meeting frequently, on a daily basis, with the Applicant at Studio 10.

[93] CI#2’s information, through its incidental points of detail, assists RPG, in that it confirms, based on CI#2’s own observation, that the Applicant was selling drugs from the Studio 10 bar, and hanging around with persons known to police to be involved in the SSM drug sub-culture.

[94] The Applicant points out that the information derives from July 25, 2012, though Cst. Crema only viewed the report that contains the information February 13, 2014. In the Applicant’s submission, such stale information cannot assist RPG at all, since so much time has passed between. Respectfully, I do not agree. Rather, I see CI#2’s information as part of an emerging pattern, commencing with the Applicant’s 2004 convictions, and continuing up until Bruyere’s March 26, 2014 meeting with the Applicant, with other signposts along the route. CI#2 provides some indication that the Applicant was still or again dealing drugs in July 2012, and would therefore be willing to sell drugs to an appropriate buyer, such as Bruyere, as part of his continuing trade.

Confidential Informant #3

[95] CI#3 provided information to Cst. Dubie between October and November 2013. No real information was provided concerning this CI’s background and reliability. This CI receives money for information that resulted in seizures or arrests. CI#3 provided the following information:

On November 16, 2013, CI#3 advised Cst. Dubie that Jessie Godbout was selling drugs for the Applicant at the Canadian Motor Hotel in SSM. Godbout had “molly”, also called MDMA, and cocaine. Godbout also used these drugs. His source for both drugs was the Applicant. Godbout himself had told CI#3 about this.

[96] Given the absence of any real markers of reliability, the absence of detail, and the absence of any corroboration, I am not able to attach any weight to this informant’s information, or to use it in the assessment of whether there are RPG to support the Authorization in this case: cf. R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at para. 16.

Sub-facial validity: conclusion about Reasonable and Probable Grounds

[97] On the totality of information that remains to be considered, once inappropriate material has been excised from the ITO, and as amplified and augmented by information advanced at the hearing of the Application, I am satisfied that there was ample reliable evidence that might reasonably be believed on the basis of which the Authorization could have issued.

Facial validity

[98] The Authorization in this case issued under s. 184.2(3) of the Criminal Code. That provision is forward-looking in the circumstances of Project Cooper, in that it anticipates that evidence will be collected in the future relating to the Applicant’s future criminal activity in trafficking drugs to Bruyere. The provision sets out its necessary preconditions:

184.2(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

(a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

[99] This challenge to the facial validity of the ITO calls for a review to determine whether, on the face of the information disclosed there, the judge could have issued the Authorization. For the purpose of this assessment, the statements in the ITO are accepted as reliable and accurate, and stand or fall as drafted, without amplification: R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.), at para. 73.

[100] Under the heading, “Reasons To Believe That Information About the Offence Will Be Obtained”, Cst. Crema put the following paragraph:

68. I believe that based on the information contained in the grounds for belief that [the Applicant] and, to a lesser degree Joshua Fogg, are responsible for trafficking controlled substances in Sault Ste. Marie, Ontario. As a result, I believe that an offence against an act of parliament has been committed. [emphasis added]

[101] This belief of Cst. Crema’s is beside the point, asserts the Applicant, and fatal to issuance. The “Investigative Plan” in para. 67 of the ITO involves Bruyere’s future attempts to purchase cocaine in increasing quantities from the Applicant. Bruyere was not seeking a confession from the Applicant about past drug dealing, but rather, information concerning future trafficking by the Applicant to Bruyere. The affiant’s failure to swear his belief that evidence of future transactions between the Applicant and Bruyere would take place necessitates the quashing of the Authorization, as the affiant failed to swear to grounds necessary to support the Authorization, pursuant to s. 184.2.

[102] Although this argument is superficially attractive, it founders on the shoals of other declarations of belief in the ITO. While para. 68 demonstrates very poor drafting, it is not the only statement of belief in Cst. Crema’s affidavit. In their totality, various statements throughout the ITO make it abundantly clear that the affiant reasonably believed that the Applicant would commit future drug trafficking with Bruyere, that would be recorded by the consent wiretap:

a. In para. 70, the affiant indicates belief that the Applicant has information relating to the trafficking of controlled substances (a), and that the Applicant will provide that information to Bruyere (b).

b. But the context in para. 70 clearly demonstrates that the belief concerns future drug transactions. Thus, in para. 70c: “[the police agent] stated that he has no doubt that he will be able to talk to, meet with and ultimately purchase cocaine – in large amounts – from [the Applicant].”

c. In para. 71, the affiant states: “I believe that through the use of the aforementioned operational plan(s), … information about this investigation will be obtained by intercepting the private communications of [the Applicant] and/or Joshua Fogg, and the Police Agent (consenting party).” The only plan in the ITO is that referred to in para. 67, involving the future attempt by Bruyere to purchase drugs from the Applicant. This in itself is a sufficient statement of belief to ground the Authorization.

d. Para. 66, “Duration of the Authorization” proposes 60 days duration, as “I believe that this time frame is necessary to allow the police agent to conduct business/drug transactions with the targets of the investigation so as to not arouse suspicion and to bring the investigation to a successful conclusion.”

[103] I am satisfied that there are sufficient statements of belief in appropriate grounds in the ITO to support the Authorization that issued in this matter.

Conclusions on the Application

[104] As I have found that the Authorization in this case properly issued on Reasonable and Probable Grounds, and that police did not misconduct themselves in the process of securing the Authorization, I find no breach of the Applicant’s s. 8 Charter rights. There is therefore no need to address s. 24(2) of the Charter.

[105] The Application is dismissed.

A.D. KURKE J.

Released: 2015-12-15

CITATION: R. v. Fleming, 2015 ONSC 4487

COURT FILE NO.: 7562/15

DATE: 2015-12-15

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WILLIAM LAWRENCE FLEMING

Applicant

REASONS ON “GAROFOLI” APPLICATION

Justice A.D. Kurke

Released: December 15, 2015