R. v. Goulart, 2016 ONSC 1519

CITATION: R. v. Goulart, 2016 ONSC 1519

COURT FILE NO.: CR 14-90000741-0000

DATE: 20160401

Summary Conviction Appeal

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ANDREW GOULART

Applicant

Lucas Price, for the Applicant

Leora Shemesh, for the Respondent

HEARD: January 4, 5, 6, 7, 8, 2016

MCWATT J.:

RULING ON S. 8 AND 24(2) charter motion

Introduction

1The applicant was charged with Possession for the Purpose of Trafficking Cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act (C.D.S.A.) and Possession of Proceeds of Crime contrary to sections 354(1)(a) and 355(b) of the Criminal Code. The charges arose as a result of the execution of a search telewarrant at the applicant’s residence where police found 208 grams of cocaine and $28,600 in cash. The search warrant is grounded on information provided to Toronto Police from a confidential informant (C.I.).

2The applicant seeks to set aside this section 11 CDSA search telewarrant on the basis that, as redacted for trial to protect the identity of the C.I., it does not possess the requisite reasonable and probable grounds for issuance to search a private residence, it is extremely deficient and ought to be quashed pursuant to a violation of s. 8 of the Charter. The evidence seized should be excluded pursuant to s. 24 (2) of the Charter of Rights and Freedoms.

3The Crown acknowledged at the outset of the application that the Information to Obtain (I.T.O.) the warrant, as redacted for purposes of disclosure at trial, does not provide sufficient information to make out the reasonable and probable grounds required to support its issuance.

4The Crown then brought a Step Six cross-application to have me consider the portions of the I.T.O. which the issuing Justice of the Peace (J.P.), William Bromwell, had when he issued the warrant on May 9, 2013.

5The Step Six application is a process created by the Supreme Court of Canada ruling in R. v. Garafoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The informant in Garafoli provided information for the issuance of a wiretap authorization, but the same principles apply here.

6The Crown provided me with a copy of the unedited I.T.O. and a draft Judicial Summary of the redacted portions.

7The affidavit materials, having already been edited by the Crown to the point where the Crown concedes the I.T.O. cannot support the warrant, was subjected, in this application, to Garafoli Steps Six procedure set out at p. 1461 of that case. Through a back and forth set of questions by the defence, answers by the Crown, submissions by both parties and various rulings by me, the Judicial Summary marked as Ex. #5 on this application was produced. I will note that the Step Six application also included a review, by me, of the appropriateness of the edited portions made to the I.T.O. pursuant to Steps Two and Three of the Garafoli procedure. Although a search warrant is presumed valid by a reviewing court on a Charter challenge such as this, the Crown’s concession that this warrant is not, due to the editing of privileged material, this motion required these steps.

8I am now satisfied, however, that the Step Six process and the resulting Judicial Summary has provided the applicant with enough information from that excised material to make him “sufficiently aware of the nature” of it so that he can challenge it in argument or by evidence. (Garafoli, supra, p. 1461).

9On consent of the Crown, counsel for the applicant was permitted to and did cross-examine the affiant of the I.T.O., Constable Tony Aiello, as part of the process.

Section 8 Charter Violation?

The Standard of Review for the Search Warrant

10The standard of review for the warrant for this court is different from the standard for issuance of the CDSA warrant by the J.P. The scope here is a narrow one. As set out in summary by Watt J.A. in R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.) at para. 84:

The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garafoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 84, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010, 2010 SCC 8, 2010 S.C.C. 8, [2010] 1 S.C.R. 253 at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Aranjo, at para. 54; and Garafoli, at p. 1452.

11Evidence obtained by cross-examination of Constable Aiello amplified the record in this case. There was no suggestion by the applicant that his evidence affected the sufficiency of the warrant. He maintains the warrant’s deficiencies are profound enough. The applicant challenges the validity of the warrant, through the officer’s evidence, on the basis that he obtained a telewarrant because it was easier than waiting until the next day to appear before a J.P. in person. I will deal with that issue at the end of these reasons.

The “Three C’s”

12Search warrants based on information from a C.I., must be assessed by the degree to which the information predicting the crime was compelling, its credibility and whether the information was corroborated by police. The analysis encompasses the totality of the information, acknowledging weakness in one area may be overcome by strength in another (R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140).

13The C.I.’s tips were compelling. The C.I. knew the applicant by name and for at least a ten-month period by the time of providing the police with information. The C.I. had purchased cocaine from Mr. Goulart in or before July, 2012 and purchased another amount of cocaine from the applicant again later in 2012. The C.I. provided information about the specific amounts of cocaine she/he purchased from the applicant along with the location of the purchase, the increment at which the applicant sold cocaine, the source of her/his knowledge about the applicant’s possessing the cocaine and the timeframe she/he acquired that knowledge.

14The C.I. gave the police firsthand information about a third sale of cocaine by the applicant within two weeks of May 9, 2013 – the date the search warrant was executed. The C.I. saw the applicant enter the premises at 168 Gladstone Ave. once this deal was complete.

15The C.I. provided Mr. Goulart’s address and described the residence at 168 Gladstone Avenue in Toronto. The C.I. physically identified it to two police officers. The C.I. has attended the address at other times. The C.I. told police the applicant stores cocaine and proceeds of the sales of the drug at the address and that he is familiar with the residence – including providing details regarding other occupant(s) the applicant lives with at his home.

16The C.I. gave police information not only about the general amount of cocaine the applicant deals, but the frequency with which he deals it.

17The firsthand nature of this information was compelling and was evidence in the I.T.O. upon which the issuing J.P., acting reasonably, could issue the telewarrant to search Mr. Goulart’s residence.

(ii) Credibility

18The informant is involved in the trafficking of cocaine and is seeking consideration for her/his information about the applicant based on an agreement reached between the police and herself/himself. The C.I.’S credibility is an issue. However, the police are aware of the C.I.’s motivation for providing the information and the source has been warned about the consequences of providing false information.

19This C.I. has proved reliable in the past by providing information on illegal items / substances for which a person was arrested and charged in relation to the item / substance.

20In spite of the C.I.’s potential weaknesses regarding credibility, it was open for the J. P. to find her/his past proven reliability regarding charges laid against another individual alleviated any anxiety the J.P. might have about the C.I.’s own criminal activities.

21I concur with Justice Spies of this court in the case of R. v. Ricketss 2014 ONSC 3210, [2014] O.J. No. 5389 at para. 90, that the fact that the C.I. is not responsible for any convictions in other matters is of no consequence to this aspect of the source’s reliability. There are a number of reasons reliable information from a C.I. does not result in a conviction.

22On the basis of a credibility assessment, it was open for the J.P. to find that he could issue the telewarrant.

(iii) Corroboration

23The police corroborated the C.I.’s information about where the applicant lived. The C.I. provided the address on two occasions. The police tied the address to the applicant by checking prior contacts with the applicant from June, 2012 when Mr. Goulart was cautioned by police for a potential liquor offence. This contact took place two months prior to the source’s providing Mr. Goulart’s address to police. The applicant also identified himself to police as residing at 168 Gladstone. The police also confirmed the address as being that of the applicant as far back as 2010.

24Through surveillance, the police observed the applicant leave and re-enter his home on August 3, 2010. They saw the applicant enter the home again on May 9, 2013 prior to the execution of the search warrant.

25The applicant complains that there is little to no corroboration of the source’s tips in this case. He submits that, in fact, the applicant’s address is the only corroboration the police undertook.

26In R. v. Caissey, 2007 ABCA 380, [2007] A.J. 1342 (C.A.) and R. v. MacDonald, 2012 ONCA 244, [2012] O.J. 1673 (C.A.), two courts of appeal have ruled that police are not obliged to confirm the very criminality alleged by a C.I. (MacDonald, supra, at par. 20).

27In Caissey, the Alberta Court of Appeal found that the police were not required to confirm the fact that the accused possessed the marijuana the informant alleged he had. In that case, the C.I., although known to police, had not previously provided information. It was enough for the police to confirm smaller details which made the tip more reliable. In that case, confirmation of the accused’s identity, his address, that no children lived in his home, the name of his roommate and the description of his vehicle was sufficient in the context of the other factors to meet the reasonable probability test.

28In MacDonald, supra, the Ontario Court of Appeal upheld a search warrant based on an anonymous Crime Stoppers’ tip that the accused was a known drug dealer who flashed a firearm at the tipster. The tip provided a physical description of the accused along with a description of his hand tattoo, his date of birth, his alias, where he lived and the fact that he drove a rental car. Police used a CPIC check to confirm the information plus his criminal record and arrested the accused driving a rental vehicle. They obtained a warrant to search his residence in the middle of the night while the accused was in custody and found two loaded handguns. The court upheld the trial judge’s conclusion that there were reasonable grounds for issuance of the warrant because the information provided by the tip was reasonably compelling and the police largely corroborated the accuracy of it through criminal data banks and observations of the accused.

29That is no different from the case before me. The police checked its FIRS, CPIC, CNI and CIPS data resources to confirm Mr. Goulart’s identity, a description, address and background. They checked a vehicle he was driving in 2010 and 2012 which was registered to the Gladstone address and they surveilled him going and coming from the target address before and on the date of the search warrant execution.

30In MacDonald, the credibility of the source could not be determined. In this matter, the C.I.’s credibility can, and as I have set out, his credibility could have allowed the J.P. to issue the warrant. That strength, along with the compellability of the information provided, makes up for any weakness in the area of corroboration.

31The information was a combination of compelling, credible and corroborated. Although weak on the amount of corroboration there could have been, it was stronger in the two other areas and I conclude the applicant has failed to satisfy his onus. There is no s. 8 Charter breach.

The Telewarrant Issue

32The applicant submits that because there was no urgency to the execution of the warrant, the affiant, Officer Aiello, should not have applied for a telewarrant on the evening of May 9, 2013, but should have appeared in person before a J.P. the next morning. The applicant alleges that the officer sought a telewarrant because it was easier and more convenient. This was an infringement of Mr. Goulart’s s. 8 Charter rights.

33Section 487.1 of the Criminal Code permits an application for a search warrant to be made by telecommunication where it would be “impracticable” to attend personally.

34The term impracticable was discussed in R. v. Daniels, 215 ONCA 283 at para. 14:

The jurisprudence in 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 …. the term .. 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.

35The B.C. Court of Appeal used similar language in R. v. Erickson, 2003 BCCA 693 at para. 33:

“Impracticable” is not a word commonly used as a legal standard. More common words include reasonable, urgent, emergent, exigent, necessary and reasonably necessary …. It … means something less than impossible and imports a large measure of practicality, what may be termed common sense.

36The warrant was issued at 7:48 p.m. and executed at 8:37 p.m. Officer Aiello testified that he was working a 4:00 p.m. to 2:00 a.m. shift. Mr. Goulart was one investigation along with others the officer had ongoing and a window appeared for him to focus on the applicant. The officer testified that on May 9, 2013, when he commenced his duties, the warrant was not complete. The added information he got was provided by a surveillance officer who told him that Mr. Goulart was entering the target residence at 5:05 p.m.

37As a result of locating the applicant in his residence and having the manpower to execute the warrant that night, he believed the time was right so he applied by the telewarrant procedure because there were no justices sitting at the Old City Hall Court House before whom he could appear in person after 5:00 p.m. [In fact, there is some indication in the case of Daniels that there were no J.Ps. available after 4:00 p.m. (see evidence filed and discussed at paragraph 22 of the decision that a “Routine Order” dated December 1, 1997 set out for the Toronto Police that a justice of the peace “will no longer be assigned to intake courts beyond the regular court hours of 0900 to 1600 hours, Monday to Friday”.)

38Officer Aiello testified that he hoped to execute the warrant that night if “things were aligned”. There was no assurance of the same manpower the next day as his team was sometimes “farmed out” to other areas of policing and he could be left with a “skeleton crew” to do other investigations.

39He testified that there was also no guarantee that Mr. Goulart would be in the residence the next day after he appeared before a J.P.

40The officer asked for the warrant to extend from May 9th to the 11th and potentially into May 12in order to be able to ensure the applicant was in the residence when the warrant was executed.

41The justice was not told that the warrant was urgent because the affiant did not consider it as being urgent.

42The applicant submits that because the warrant was not urgent, the officer should have appeared in person the next day.

43Officer Aiello’s evidence was consistent and cogent and I accept it. I can draw no inference from the evidence on this issue that the affiant created a situation in order not to have to apply for the warrant in person, as asserted by the applicant. The officer’s explanation as to why he applied after 5:00 p.m. for it and the fact the warrant was executed less than an hour after it was issued, supports the evidence that he was waiting for the “stars to align”.

44He had concerns the information he had was becoming stale the longer police waited to have the warrant issued and executed. The cocaine he hoped to find at the residence could easily have been sold. The applicant was in the home on the night they executed the warrant. A nighttime execution coincided with the right number of officers plus a road boss on duty that shift to execute the search.

45There is also no s. 8 breach on this ground of the Application. The Application is dismissed.

McWatt J.