CITATION: R. v. Buchanan, 2016 ONSC 2101
COURT FILE NO.: 124/15
DATE: 2016/03/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Peter Wenglowski, for the Crown
Crown
- and -
ROBERT BUCHANAN
John Bothwell, for the Accused
Accused
HEARD: February 22, 23 & 24, 2016
The Honourable Mr. Justice J.R. Henderson
DECISION ON CHARTER APPLICATION
INTRODUCTION
[1] The accused, Robert Buchanan (“Buchanan”), is charged with eight offences under the Controlled Drugs and Substances Act (“CDSA”) and the Criminal Code of Canada (“Criminal Code”), including possession of cocaine for the purpose of trafficking, possession of heroin for the purpose of trafficking, and possession of proceeds of crime.
[2] In this pre-trial application, Buchanan alleges that his rights as set out in s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms (“Charter”) have been breached. In particular, Buchanan alleges that he was unlawfully detained because the police officers who arrested him did not have reasonable grounds to believe that he had committed or was about to commit an indictable offence. Buchanan further alleges that the three authorized search warrants should be quashed because the evidence that was before the authorizing judge was insufficient to support the warrants. Thus, Buchanan alleges that the searches of his residence and his two vehicles were unlawful.
[3] Because of these alleged breaches of the Charter, Buchanan submits that all evidence obtained as a result of the searches should be excluded from the trial pursuant to s. 24(2) of the Charter.
THE FACTS
[4] A Niagara Regional Police Service (“NRPS”) investigation into possible drug offences committed by Buchanan commenced in June 2014 when Detective Patrick McCready (“McCready”) received information from a confidential informant (“CI#1”). CI#1 informed McCready that an older male named “Buck” is selling cocaine; that Buck has longer hair and wears glasses; that Buck hangs on the patio at Romby’s Bar and sells cocaine; and that Buck drives a red Corvette.
[5] McCready then informed members of the Street Crime Unit (“SCU”) of the NRPS, including Sergeant Paul Blakely (“Blakely”) and Detective Paul Jackson (“Jackson”) of this confidential information. McCready also informed members of the SCU that he had previously conducted an investigation into Buchanan’s drug activities in 2011; that Buchanan was an older male; that Buchanan went by the name of “Buck”; and that quantities of cocaine, marijuana, and oxycontin had been seized from Buchanan’s residence in the prior investigation.
[6] Further, McCready spoke with a parole officer who informed him that Buchanan lived at Unit 3, 263 Scott Street, St. Catharines, and that Buchanan owned a Ford F150 pickup truck and a red Corvette. McCready then drove past the residence at 263 Scott Street where he observed a red Corvette parked in the driveway. Subsequently, McCready determined that the accused was the registered owner of that vehicle. Again, McCready relayed this information to members of the SCU.
[7] Later in June 2014, McCready received further information from CI#1 that Buck is still selling cocaine; that Buck is driving a red Corvette; that Buck still sells cocaine at Romby’s Bar; and that Buck sells the cocaine on the patio at Romby’s. This information was again relayed to the SCU.
[8] Thereafter, in light of this information, members of the NRPS set up surveillance of Buchanan on two separate days. Five police officers from the SCU, including Blakely, Jackson, Detective Ian Sills (“Sills”), Detective Eric Bell (“Bell”), and Detective Nick Hawrylyshyn (“Hawrylyshyn”) were involved in the surveillance.
[9] In total, these officers observed the activities of Buchanan from approximately 3:40 p.m. until 10:15 p.m. on June 24, 2014, and from approximately 12:25 p.m. until 1:27 p.m. on June 26, 2014. At the conclusion of the surveillance on June 26, 2014, Buchanan was arrested by Bell and by uniformed officer Constable Steve Phillips (“Phillips”) at a restaurant on Hartzel Road, St. Catharines.
[10] The surveillance of Buchanan from June 24, 2014 can be summarized as follows:
At 3:40 p.m., officers set up surveillance on Buchanan’s residence at 263 Scott Street. At 4:27 p.m., a white Ford F150 pickup truck (“the Ford truck”) pulled into the driveway. Buchanan and a female exited the Ford truck and entered the residence.
At 4:39 p.m., Buchanan exited the residence, entered the Ford truck, and drove away. The police officers lost Buchanan in traffic. At 6:39 p.m., Buchanan returned to the residence in the Ford truck and entered the residence.
At 6:47 p.m., a Chevrolet Cobalt vehicle arrived at Buchanan’s residence. An unknown male exited the Chevrolet Cobalt and entered Buchanan’s residence. At 7:00 p.m., the male and Buchanan exited the residence. The male went to the Chevrolet Cobalt and leaned into the vehicle. At approximately the same time, Buchanan opened the driver’s door of the Ford truck and leaned into the truck. Buchanan appeared to remove a small unidentified item from the Ford truck. Then both Buchanan and the male returned to the residence. At 7:03 p.m., the male exited the residence, entered the Chevrolet Cobalt, and drove away.
At 7:27 p.m., Buchanan exited the residence, entered the Ford truck, and drove to a residence on White Street. Buchanan remained in his truck. An unknown male exited the residence, ran up to Buchanan’s truck, and then immediately returned to the residence. Buchanan then drove away at 7:29 p.m.
At 7:31 p.m., Buchanan was observed driving the Ford truck into a parking lot behind an apartment building on Scott Street. The Ford truck remained out of sight behind the building for approximately two minutes. At 7:33 p.m., the Ford truck came back into view and drove away.
At 7:45 p.m., Buchanan drove the Ford truck to the Subs Plus plaza parking lot on Queenston Street. At that point, a female walked up to the Ford truck and entered the truck through the rear passenger door. Members of the SCU recognized the female to be Denise Cote (“Cote”) who lives beside the Subs Plus plaza.
Then, Buchanan drove the Ford truck, with Cote in the vehicle, to a parking lot at an Avondale store at Westchester Crescent and Oakdale Avenue. The Ford truck remained in the Avondale parking lot for approximately seven minutes. All occupants remained in the vehicle. At 7:58 p.m., the Ford truck returned to the Subs Plus plaza, at which time Cote exited the truck and left. Buchanan drove away in the Ford truck.
At 8:01 p.m., Buchanan drove the truck to a residence on Queenston Street and parked in the driveway for approximately two minutes. At 8:07 p.m., the Ford truck arrived at a sports bar on Welland Avenue. Buchanan and a female exited the truck and went inside the bar. Buchanan and the female were observed inside the bar eating and drinking beer for about one hour. Then, they left the bar and returned to Buchanan’s residence.
At 9:22 p.m., Buchanan exited his residence alone, entered the Ford truck, and drove to a residence on Carlton Street where he parked in the driveway at 9:31 p.m. At that point, an unknown male ran up to the truck and reached into the truck through the driver’s side window where Buchanan was seated. Then, the male immediately walked away. At 9:32 p.m., Buchanan drove away in the truck.
At 9:43 p.m., Buchanan parked the Ford truck on the street in front of Rizzardo’s Auto Body Shop (“Rizzardo’s”) on St. Paul Crescent. Buchanan exited the truck and entered Rizzardo’s through the office door. Rizzardo’s garage appeared to be closed for business, but there was a light shining in the office area when Buchanan entered. At 10:06 p.m., Buchanan exited Rizzardo’s and drove away in the truck.
[11] The surveillance of Buchanan from June 26, 2014 can be summarized as follows:
At 12:25 p.m., surveillance was set up at Buchanan’s residence and a red Corvette was observed in the driveway. At 12:34 p.m., Buchanan exited the residence, entered the Corvette, and drove away.
At 12:36 p.m., Buchanan arrived at the Fairview Mall parking lot where he stopped the Corvette in a laneway in the parking lot. Buchanan remained in the Corvette. At that point, an unknown male quickly walked toward the Corvette and reached into the passenger side window as if to hand something to Buchanan. Then, Buchanan reached with his right arm through the passenger window, and appeared to hand something to the male, which the male accepted. The male then placed his hand into his right pants pocket. The male left on foot and Buchanan drove away.
At 12:40 p.m., Buchanan arrived in the Corvette at the parking lot for the Tim Horton’s restaurant on Welland Avenue. Then, an unknown male arrived in a separate vehicle and parked in the Tim Horton’s lot. Both Buchanan and the male exited their vehicles and walked together into the restaurant. The male was wearing a green shirt. At 12:52 p.m., Buchanan and the male exited the restaurant and walked to the Corvette. Buchanan reached into the Corvette and appeared to remove an unknown item from the vehicle. Then, Buchanan appeared to hand something to the male, which the male accepted. The male then placed his hand into his left shorts pocket. The male then walked away and Buchanan re-entered the restaurant.
Thereafter, the male with the green shirt was observed entering his vehicle and driving a short distance within the parking lot before stopping. At 12:55 p.m., the male was observed within his vehicle rolling a $20.00 bill, leaning forward over the center console, and then sitting up in the driver’s seat. Then, he was observed wiping his nose and teeth.
At 1:02 p.m., Buchanan left Tim Horton’s and drove his Corvette to Rizzardo’s. Buchanan exited the Corvette, removed a black jacket and a black bag from the Corvette, and placed the jacket and the bag inside of the Ford truck that was parked on the street. He then entered Rizzardo’s. At 1:17 p.m., Buchanan exited Rizzardo’s, entered the Ford truck, and drove away.
[12] As Buchanan left Rizzardo’s at approximately 1:17 p.m., Blakely informed the other officers that he believed that they had reasonable grounds to arrest Buchanan. Blakely contacted Phillips to assist with the arrest. Buchanan drove the Ford truck to a restaurant on Hartzel Road, parked the truck, and entered the restaurant. At 1:27 p.m., Bell and Phillips entered the restaurant and arrested Buchanan.
[13] During the course of the investigation, Jackson had been preparing an Information To Obtain (“ITO”) for the purpose of obtaining search warrants. Jackson’s affidavit, with appendices, was completed and sworn in the afternoon of June 26, 2014. At 2:40 p.m., on June 26, 2014, Justice of the Peace Moses authorized search warrants for a search of Buchanan’s residence at 263 Scott Street, and for searches of the red Corvette and the Ford truck. Shortly after 3:00 p.m., police officers conducted searches of the residence and the two vehicles.
[14] In summary, as a result of the searches, the officers found 135 grams of cocaine, 27.3 grams of heroin, 3 dilaudids, and 4 hydromorphone capsules, as well as $3,720.00 in cash.
[15] In addition to the aforementioned surveillance, on June 25, 2014, the officers conducted a CPIC and Versadex check on Buchanan. This investigation showed that Buchanan’s date of birth was May 8, 1952. It further showed that Buchanan had eight prior criminal convictions dating back to 2009, including convictions for possession of cocaine for the purpose of trafficking, possession of heroin for the purpose of trafficking, possession of a Schedule I substance for the purpose of trafficking, and possession of a Schedule II substance for the purpose of trafficking. They also determined that Buchanan was currently on parole as a result of his criminal convictions.
[16] Further, it should be noted that the female believed to be Cote who entered Buchanan’s vehicle on June 24, 2014, was known to several of the SCU officers. It was known that Cote had prior criminal convictions for possession of cocaine. She was a known drug user and a low level drug dealer.
[17] Still further, the owner of Rizzardo’s, Daniel Rizzardo, was also a person known by several of the SCU officers. Rizzardo was known to be a drug user and a drug dealer. He also has prior convictions for possession of cocaine.
THE LAW
[18] Section 495(1)(a) of the Criminal Code defines a police officer’s powers of arrest, in part, as follows:
(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
[19] In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, the Supreme Court of Canada (“SCC”) set out the test for determining whether a police officer has reasonable grounds to arrest an accused. At p. 250 of the Storrey decision, Cory, J. wrote:
There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.
[20] In R. v. Whyte, 2011 ONCA 24, affirmed at 2011 SCC 49, [2011] 3 S.C.R. 364, the Ontario Court of Appeal (“OCA”) considered an appeal by the Crown from an acquittal at trial. The arrest of the accused had been based on a confidential tip followed by police surveillance of the accused. The trial judge found that the police officers did not have reasonable grounds to arrest the accused, and acquitted the accused. However, the OCA reversed the findings at trial, overturned the acquittal, and entered convictions.
[21] Rosenberg J.A. stated that it was an error for the trial judge to assess each fact or observation in isolation. At para. 19 he wrote that the trial judge “failed to consider the totality of information available to the arresting officers and, in particular, erred in failing to consider the impact of the unfolding events as seen in the police surveillance.” [Emphasis added.]
[22] Further, at para. 31 Rosenberg J.A. stated that the sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation. He confirmed that the objective reasonableness of the arresting officer’s grounds must be assessed from the standpoint of the reasonable person standing in the shoes of the police officer.
[23] Similarly, in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 62, in the context of a discussion about the degree of reasonable suspicion that is necessary to justify investigative detention, Moldaver J. wrote “Officer training and experience can play an important role in determining whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day.”
[24] Regarding confidential information, in the case of R. v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207, (OCA), affirmed at 1989 13 (SCC), [1989] 2 S.C.R. 1140, police officers, relying upon information from a confidential informant that the accused would be participating in a drug transaction, stopped the accused’s vehicle and conducted a warrantless search of the accused and the vehicle.
[25] At para. 60 of the SCC decision in Debot Wilson J. wrote:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [Emphasis added.]
[26] In R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, the SCC dealt with the reasonableness of the grounds for a wiretap authorization that was based in part upon confidential information. At para. 68 of Garofoli, Sopinka J. wrote the following with respect to confidential information:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the “tip”;
(b) the informer’s source of knowledge;
(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[27] Surveillance and other types of police investigations are often used to test the reliability of a tip received from a confidential informant. The rationale for this approach, as discussed in Garofoli and Debot, is that conclusory statements from a confidential informant are not sufficient to objectively provide reasonable grounds for a belief that would support a search. That is, there must be some objective evidence with which the court can measure the reliability of the confidential information.
[28] These principles regarding confidential information have also been applied to the question of whether a police officer had reasonable grounds to arrest an accused, as discussed in the case of R. v. Zammit (1993), 1993 3424 (ON CA), 13 O.R. (3d) 76 (OCA).
[29] The search warrant in the present case was granted pursuant to s. 11 of the CDSA, which in part states that a justice who is satisfied by information on oath that there are reasonable grounds to believe that a controlled substance in respect of which the CDSA has been contravened, is in a place, may issue a warrant authorizing a peace officer to search the place for any such controlled substance and to seize it.
[30] As discussed in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, there is a legal obligation on the affiant of an ITO to provide full and frank disclosure of material facts with all relevant facts set out truthfully, fully, and plainly. The affiant is under a duty to avoid tricking the reader by the language used or by strategic omission.
[31] Also, an affiant of an ITO has a duty to tell the whole truth. The omission of part of the truth can be very misleading to the trier of fact. See the case of R. v. Nickerson, [2000] B.C.J. 2630 at paras. 15-16.
[32] If any of the allegations in the ITO are found to be false or erroneous by the reviewing court, then any offending parts of the ITO should be excised by the reviewing court in determining the sufficiency of the material that was filed in support of the application for a search warrant. See R. v. Bisson 1994 46 (SCC), [1994] 3 S.C.R. 1097. Once the offending parts have been excised or expunged, the question becomes whether there is sufficient remaining material upon which the authorizing judge could have granted the order. See R. v. Hosie, (1996) 1996 450 (ON CA), 107 C.C.C. (3d) 385 (OCA) at para. 18.
ANALYSIS
[33] The police investigation into Buchanan’s activities started with the tip from CI#1, given on two occasions to McCready. I find that the tip from CI#1 on its own has limited value.
[34] The Crown concedes that CI#1 was not a person who had provided confidential information in the past, and therefore there is no history to support a finding that the information provided by CI#1 was credible.
[35] Further, because the tip contained very little distinctive detail, the information received from CI#1 cannot be described as compelling. That is, comments that the suspect is an older person, with longer hair, who wears glasses, are very vague general statements that could easily apply to a large segment of the population. In addition, the tip does not include any specific identifying information about the individual such as an address, a telephone number, or even a complete name. I also accept that the nickname “Buck” is a fairly common nickname.
[36] The two distinctive features of the tip are the red Corvette and the allegation that Buck sold cocaine at Romby’s Bar. The reference to a red Corvette was helpful in the police investigation, but defence counsel correctly submits that the officers did not attempt to corroborate the most significant detail in the tip, namely, the alleged activity at Romby’s Bar, and therefore that portion of the tip was not useful.
[37] Regarding corroboration, in the Debot decision at para. 70, Wilson J. wrote, “it should not be necessary for the police to confirm each detail in an informant’s tip so long as the sequence of events actually observed conforms to the anticipated pattern to remove the possibility of coincidence.” Therefore, I accept that corroboration of the distinctive details of a tip can be very helpful to an investigation, but I find that corroboration is not mandatory. A court must consider the totality of the investigation, including the credibility of the informant, the detail in the tip, any corroboration, the surveillance, and the sequence of events, in deciding the issues.
[38] In the present case, the officers decided to conduct surveillance on Buchanan’s person, and in doing so they went where Buchanan took them. There is nothing wrong with that approach, but Buchanan did not take them to Romby’s Bar. Thus, I agree that the uncorroborated portion of the tip in reference to Romby’s Bar is not very useful to the investigation in this case.
[39] In summary, I accept the submission by defence counsel that in consideration of the Debot factors as to whether the tip was credible, compelling, and corroborated, the confidential information in this case was extremely weak. On its own, it has limited value.
[40] However, a tip, even a weak one, can serve as the start of an investigation that leads to a lawful arrest. In the present case, the tip from CI#1 led to an extensive police investigation, first by McCready, and then by the five officers who conducted surveillance. The issue is not the strength of the tip at the start of the investigation, but the strength of the totality of the information at the time of the arrest.
[41] When the tip was first received, McCready properly did a modest investigation to corroborate some of the information in the tip. McCready was aware of a person nicknamed Buck who was in his sixties who had a prior record for trafficking in cocaine. This led McCready to investigate Buchanan. Thereafter, McCready was able to confirm Buchanan’s residence and Buchanan’s ownership of a red Corvette. Even though that information on its own is not incriminating, McCready was able to confirm that the information from CI#1 may be in reference to Buchanan. This, in turn, led to the surveillance of Buchanan.
[42] Thus, in the present case, the value of the tip was that it led the NRPS into conducting surveillance on the activities of Buchanan. I accept the Crown’s submission that it was the surveillance evidence that caused the police officers to believe that Buchanan had committed criminal offences.
[43] Defence counsel submitted that the surveillance evidence is weak because the events that were observed were merely a series of innocent interactions. Moreover, defence counsel submitted that there was no connection between the confidential information from CI#1 that Buchanan was selling cocaine from Romby’s Bar and the police officers’ belief that the surveillance showed that Buchanan was conducting mobile drug sales from his car or truck.
[44] With respect, I disagree with the submission of defence counsel that the surveillance evidence is weak. It is correct that the tip did not refer to mobile drug sales; that is, I accept that the events observed during the surveillance were not within the context of the tip. However, it does not follow that the surveillance evidence should be ignored merely because it differed from the information provided by CI#l. Again, the tip led to an investigation of Buchanan’s activities. It is the result of that investigation that is important.
[45] On the first day of the surveillance, the police officers observed five separate short duration interactions between Buchanan and other persons over a period of approximately three hours, with an hour off for dinner. On those five occasions, the other person either entered Buchanan’s vehicle, or the other person quickly came up to Buchanan’s vehicle and left, or Buchanan left his vehicle for a short period of time to meet with someone. The interactions were quick and secretive.
[46] On one occasion, Buchanan appeared to take something out of his vehicle. On another occasion, the other person reached through a window into Buchanan’s vehicle toward Buchanan. On a sixth occasion during the same time frame, Buchanan drove his vehicle into a parking lot and remained out of view behind a building for approximately two minutes.
[47] Defence counsel spent considerable time cross-examining the police officers to suggest that each of these individual interactions on their own could be an innocent encounter. That is, a short stop and brief interaction with another person could just be a brief hello, or a handshake. In Cote’s case, perhaps Buchanan was just giving her a ride to the store.
[48] I accept that each interaction taken individually could be innocuous; however, in this case, I find that at some point a pattern emerged. I accept that a person may have an occasional quick interaction with a friend, but as those interactions become more and more frequent, a trained police officer will start to consider whether each interaction has more significance.
[49] The SCU officers who were involved in the surveillance had a wealth of experience investigating drug activities. The officers all testified that the short interactions, the frequency of the interactions, the secretive nature of the interactions, and the apparent hand-to-hand contact in some instances, when considered in totality, caused the officers to believe that Buchanan was involved in illegal mobile drug sales. In my view, the court should give this evidence some weight.
[50] Further, I acknowledge that, although there appeared to be some hand-to-hand contact, at no time did any officer observe any money or drugs change hands. In that respect, I accept the evidence of the officers that mobile drug trafficking is usually conducted in such a secretive manner that it would be rare for a police officer to ever see any money or drugs change hands.
[51] In the present case, the pattern became more evident with the surveillance on the second day. On the second day of surveillance, in less than one hour, Buchanan had three more short duration interactions with another person from his vehicle or within a short distance of his vehicle. In one interaction, Buchanan appeared to hand something to a person who had reached into Buchanan’s vehicle. In another interaction, Buchanan appeared to take something out of his vehicle and hand it to a male in a green shirt.
[52] Significantly, the male in the green shirt was observed immediately after his interaction with Buchanan conducting himself in a way that suggests that he was ingesting an illegal drug.
[53] Again, defence counsel submitted that each of the interactions on the second day could also be innocuous. However, in my view, the events of the second day in fact confirmed the pattern established on the first day.
[54] As Quinn J. observed, at para. 144, in the case of R. v. Dezainde, 2014 ONSC 1420:
... If the evidence on this application involved the tip and only one of the stops by the accused, reasonable grounds would not exist. If the evidence consisted of the tip and two of the stops, reasonable grounds still would not exist. However, at some point (and I need not determine where) in the eight stops found in the truncated summary, any thought of innocent coincidence disappears. A pattern of conduct emerges.
[55] In my view, the same comments apply to the present case. I acknowledge that the tip in the present case is weaker than the tip in Dezainde, and that the surveillance in the present case provides little corroboration of the confidential information received in the tip. However, it is clear that Buchanan was engaged in a routine of repeated short stops and brief interactions to the extent that his actions could not reasonably be characterized as coincidences; a pattern of conduct emerged.
[56] I accept that the case for arresting Buchanan would have been stronger had the tip contained more detail, or if the police officers had observed Buchanan selling something at Romby’s Bar. However, as discussed earlier, the court must consider the totality of the information available to the arresting officers. In the present case, although the tip is weak, the surveillance evidence is strong.
[57] I find that Blakely made the decision to arrest Buchanan, and that, based on the pattern of conduct that Blakely had observed, he believed that Buchanan had committed criminal offences. Subjectively, he believed that Buchanan was engaged in a mobile drug trafficking operation and that he had made several drug deals over the course of the two days of surveillance.
[58] Moreover, given a relatively weak tip, plus some corroboration of the neutral information provided by CI#1, plus the pattern of Buchanan’s activities, plus Buchanan’s interactions with two persons known to be involved in the drug subculture, plus the apparent use of drugs by the male in the green shirt, I find that the grounds for the arrest of Buchanan were objectively reasonable. Therefore, there has been no breach of s. 9 of the Charter.
[59] With respect to the search warrant, a higher standard applies than the standard for the arrest of an accused. In the case of R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (OCA), at para. 18, Doherty J. wrote:
The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford...
[60] Defence counsel in this case challenges two parts of the ITO that he submits are not fair and frank. I accept that the reference at page 12 of the ITO to a “Streetcheck” report dated August 1, 2012, wherein the officer referred to Buchanan’s vehicle as a “drug dealer vehicle parked at a drug dealer house” is not fair or frank. It may be that the officer can justify calling Buchanan a drug dealer, but in an ITO the authorizing judge must be given the context for such comments in the supporting material. In this case, the officer categorized Buchanan as a criminal, but he did not provide the supporting documentation or put the matter in context. This part of the ITO should be excised.
[61] Regarding the other contentious part of the ITO, I do not accept defence counsel’s submission that the part of the ITO that states that Cote and Rizzardo have convictions for possession of cocaine is misleading. Defence counsel suggested that the affiant should have informed the authorizing judge that these two persons were also known drug dealers, not just drug users. In my view, whether Buchanan interacted with a drug user or a drug dealer is not significant. This part of the ITO need not be excised.
[62] Accordingly, after excising the aforementioned portion of the ITO at page 12, I must consider if the balance of the material that was before the authorizing judge was sufficient to justify a search warrant. In my view, it was sufficient.
[63] In particular, the ITO sets out a description of the events observed on the two days of surveillance. This is the strength of the case against Buchanan. A pattern is clear from the surveillance. Moreover, the ITO fairly sets out the limited details received in the confidential tip, and the information that was obtained by McCready.
[64] From this ITO, the authorizing judge would have been satisfied that there were reasonable grounds to believe that Buchanan was using his vehicles to conduct mobile drug sales. Therefore, I find that the authorizing judge was justified in granting the search warrants for Buchanan’s residence and his two vehicles. The searches were made pursuant to valid search warrants, and therefore I find that there has not been a breach of s. 8 of the Charter.
CONCLUSION
[65] In summary, there has been no breach of s. 8 or s. 9 of the Charter. I find that the officers had reasonable grounds to arrest Buchanan. I also find that the ITO was sufficient to justify the search warrants. This application by the accused is dismissed.
Henderson J.
Released: March 29, 2016
CITATION: R. v. Buchanan, 2016 ONSC 2101
COURT FILE NO.: 124/15
DATE: 2016/03/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
- and -
ROBERT BUCHANAN
Accused
DECISION ON CHARTER APPLICATION
Henderson J.
Released: March 29, 2016