CITATION: R. v. Thomas, 2016 ONSC 640

COURT FILE NO.: CR-14-90000800-0000

DATE: 20160128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNIQUE THOMAS

Chris De Sa, for the Crown

Barry Plant and Harrison Notkin, for Mr. Thomas

HEARD: January 18-20, 2016

r.f. goldstein j.

REASONS FOR JUDGMENT

[1] On March 11 2013 the Toronto Police executed a search warrant at 201 Sherbourne Street, Apt. 101. They found 150 to 200 grams of cocaine, of which 20 grams was crack cocaine. The rest was powder cocaine. Ronnique Thomas lived at that apartment and was the target of the search.

[2] The warrant was based on information from a confidential informant, or source. Much of the material in the information to obtain the warrant (which I refer to as the ITO) has been redacted in order to protect the identity of the source. Mr. Thomas’s counsel, Mr. Plant, argues that the ITO was insufficient to meet the preconditions for the issuance of the warrant. As a result, he says, there was no basis upon which the justice of the peace could have issued the warrant. He says that the police violated Mr. Thomas’s Charter rights. He says the evidence should be excluded.

[3] In my view, there was a basis upon which the justice of the peace could have issued the warrant. On January 21, 2016 I indicated to counsel that I was dismissing the application with reasons to follow. What follows are my reasons.

FACTS:

[4] Sometime in March 2013 Detective Constable Wilson of the Toronto Police Service met with a confidential source. The source provided information about a crack cocaine dealer operating at 201 Sherbourne Street. The redacted ITO sets out the following information:

• The source is a crack cocaine addict;
• The source purchases crack cocaine from a tall, light-skinned male black man who is 22 years old, tall, 160 lbs, with short black hair. This drug dealer is not a crack user. He just sells it;
• The source provided a nickname for this drug dealer. The nickname itself has been redacted;The source provided a phone number for this person;
• The source stated that in order to make a purchase he contacts the drug dealer by telephone and requests a certain amount of crack cocaine. The drug dealer tells the source to meet him at a certain floor within 201 Sherbourne;
• The source stated that he has seen the drug dealer with large sums of cash on his person and a digital scale during drug transactions;
• The source stated that the drug dealer typically sells larger quantities of crack cocaine and never allows buyers into his apartment;
• The source also stated that the drug dealer usually wraps his crack in a plastic wrapper.

[5] According to the ITO, at some point in March 2013 a police officer showed the source a picture of Mr. Thomas. The source identified Mr. Thomas as the drug dealer.

[6] Counsel agreed on the following facts:

• The source has not been used in the past;
• The source was seeking monetary compensation;
• There was nothing in the un-redacted ITO to indicate that the source had been inside 201 Sherbourne Street, Apt. 101 or directly observed drugs inside that apartment;
• Plastic bags or clear plastic wrap is a common way to wrap crack cocaine;
• No production orders or further investigation was done in relation to the phone number the source provided for Mr. Thomas;
• 201 Sherbourne is connected to the 191 Sherbourne by a tunnel. Both are apartment buildings. There is a pool, a laundry room, and a convenience store in a common area of the two buildings.

[7] A “Step 6 Garofoli” process dealt with the redacted portions of the ITO. An initial judicial summary was provided to defence counsel. I reviewed the summary as well as the un-redacted ITO. After my review, and discussion with Crown counsel regarding the redactions, a revised judicial summary was generated. The revised judicial summary was provided to defence counsel and filed as an exhibit. Defence counsel indicated that he was satisfied (insofar as he could be) with the judicial summary. These are the key points from the revised judicial summary:

• The source has purchased drugs from Mr. Thomas more than once. The redacted information sets out specifics regarding the purchase or purchases of drugs made by the source from Mr. Thomas;
• The redacted information notes the nickname by which the source knows Mr. Thomas;
• The redacted information sets out the specific details of the amount of crack cocaine that the source has purchased from Mr. Thomas;
• The redacted information sets out information about Mr. Thomas’s drug practices;
• The redacted information sets out background information about Mr. Thomas that is known to the source;
• The source has a criminal record that is appended to the ITO. The record itself is redacted;
• A second source provided information. The redacted information references information provided by that source. The redacted information provides corroborating background information. The redacted information provides no information regarding the background or history of the second source.

[8] Crown counsel also provided additional disclosure to supplement the revised judicial summary. The additional disclosure indicated that the source provided information that supports Mr. Thomas dealing drugs with another person.

[9] The Crown called further evidence at the review. That evidence consisted of the testimony of two police officers, Detective Constables Snow and Tattersall. On March 10 2013 Detective Constable Wilson assigned these officers to make observations at 201 Sherbourne Street, Apt. 101. They arrived in the lobby of the building at 9:15 pm and sat on chairs in the lobby until about 9:50 pm. They were able to see Apt. 101. During that 35 minute period they saw Mr. Thomas twice leave apartment 101, take the elevator somewhere in the building, and then return. They were unable to say how long Mr. Thomas was gone from his apartment each time. I suspect that the officers were unable to say because they were in plainclothes and could not pull out their notebooks and make a note.

[10] At 9:50 pm the officers observed Mr. Thomas leave the building and walk northbound on Sherbourne Street. They called in their observations to Detective Constable Wilson, who summarized them in the ITO. At 10:01 pm the officers left the building and went to their van. Apartment 101 is a ground floor unit. Detective Constable Snow walked around the building to see if Mr. Thomas had returned. Indeed he had, although the officers were unable to say how he got back into the building. A few minutes later the officers observed Mr. Thomas leaving the building and getting into a Beck taxi. The officers decided to detain him. They had concluded that he was aware that they were police officers. They believed that Mr. Thomas had correctly assumed that they had him under observation. The officers were aware that Detective Constable Wilson was in the process of submitting an application for a search warrant to the telewarrant centre at that point.

ANALYSIS:

[11] As a reviewing judge, my job is to determine whether the justice of the peace could have issued the warrant: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at paras. 51-52. I analyze the question this way: did the police provide enough credible and reliable evidence to the justice of the peace for him or her to issue the warrant? In answering that question I can examine the ITO as amplified on the review: Garafoli at paras. 51-52; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51. I do not substitute my view for that of the authorizing justice of the peace. I simply determine whether there remains sufficient credible and reliable evidence after going through the review process: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

[12] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 60 the Supreme Court set out the three criteria for evaluating the information relied on by the police to justify a warrantless search. I must answer these questions:

• Was the information compelling?
• Was the information credible?
• Was the information corroborated?

[13] These three questions are often informally referred to as the “three c’s”. I must not examine each question in isolation. What is important is the totality of the circumstances. A deficiency in one of the “three c’s” can be made up by strength in another area.

[14] Subsequent courts have expanded the reach of Debot to include not just warrantless searches, but also wiretap authorizations and, by extension, warranted searches: Garofoli, paras. 51-52.

[15] At para. 68 of Garofoli Sopinka J. expanded on the principles where the information comes from an confidential informant:

(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.

[16] Where the informant is anonymous, a higher level of corroboration is required: R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at para. 15. This source here was obviously known to the police, although he had no track record with them.

[17] In this judgment I refer to informants generally when I am discussing the applicable principles. I refer to “the source” where I am discussing the particular informant in this case.

[18] In R. v. Greaves-Bisserasingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493 Code J. helpfully summarized the principles at para. 35:

It appears from Wilson J.'s reasons in DeBot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to any supporting information uncovered by the police investigation.

[19] I must therefore resolve these issues:

(a) Was the information compelling?

(b) Was the information credible?

(c) Was the information corroborated?

(d) After considering the totality of the circumstances was there a basis upon which the justice of the peace could have issued the warrant?

(a) Was the information compelling?

[20] Mr. Plant did not press this issue too strongly. I agree with Mr. DeSa that the information provided by the source was at the high end of compelling. Even on the face of the redacted ITO the source’s information was highly detailed and based on first hand knowledge. The source had purchased crack cocaine from Mr. Thomas. The source was familiar with Mr. Thomas’s methods for selling crack cocaine. He provided detailed information about those methods. He knew Mr. Thomas’s telephone number and provided a physical description.

[21] Current personal knowledge by the informant is generally regarded as compelling. The source had detailed personal knowledge of Mr. Thomas’s drug trafficking. In R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761 the Court of Appeal noted that the informant’s tip was very compelling. The informant had personally observed 10-15 drug transactions. The informant provided a great deal of detail about the storage of the drugs based on first-hand knowledge. The informant’s information was not merely conclusory or the repetition of rumour or gossip.

[22] MacDonnnell J.’s conclusions in R. v. Choi, 2013 ONSC 291 at para. 32 could equally apply to the source here:

Considered as a whole, the level of detail and specificity of the information provided by the confidential source based on his direct exposure to and involvement in the drug dealing operations of the target made the information compelling. It supported a reasonable inference that the target was engaged in an ongoing enterprise for the supply of several kinds of illicit drugs, some of which he kept in his residence at 10 Addington Avenue. The observations of the source appeared to be recent. Subject to a consideration of the credibility of the source and the extent to which his information was corroborated, it was capable of supporting a reasonable belief that controlled substances would be found in the target's residence if a search warrant were granted.

(b) Was the information credible?

[23] Mr. Plant argues that the source’s information as not credible. He argues that since this informant had no track record with the police, other indicia of credibility were required.

[24] I do think that the credibility of the information is the weakest aspect of the “three c’s”. It is true that this particular source had not provided information in the past. It is also true that there was no way to determine his or her reliability in that sense. Furthermore, the source had a criminal record.

[25] That said, there were indicia of credibility present. The fact that the source was not anonymous lent at least some credibility to the information. The source was a self-admitted user of crack cocaine who had purchased from Mr. Thomas but was motivated by money. The source was aware that misleading the police could result in criminal charges. That factor also lent some credibility to the information provided by the source: Choi, para. 34. Of course, it must be borne in mind that the source is a crack cocaine user with a criminal history. That fact cut both ways.

(c) Was the information corroborated?

[26] Mr. Plant argues that the police were unable to corroborate the essential part of the source’s story, which is that Mr. Thomas is a drug dealer. The police, therefore, engaged in a process designed to show that Mr. Thomas was a person of bad character and therefore a drug dealer. He argues that they had to do this because they had nothing else corroborative.

[27] I must respectfully disagree with both points. The corroboration was quite strong.

[28] The officers observed behaviour by Mr. Thomas that was consistent with the drug dealing described by the source.

[29] Mr. Plant makes the point that there may have been alternative explanations for Mr. Thomas twice leaving and coming back to his apartment in short order. The building complex contains a swimming pool, a laundry facility, and a convenience store. The officers never checked to see where Mr. Thomas went when he left his apartment.

[30] The officers explained that had they followed Mr. Thomas, he undoubtedly would have quickly realized that they were police officers and they were interested in him. This explanation was reasonable. It is always better to have more information, but that must be balanced against the risk that closer observation would undermine the investigation. Investigative decisions of this kind are basic to police work. A court is in no position to second-guess the officers making them.

[31] More importantly, just because there were alternative explanations for Mr. Thomas leaving his apartment does not mean that the corroborating observations were not valid. The police saw him leave the apartment and return twice in the course of 35 minutes. The police did not see him in a bathing suit. They also did not see him carrying a laundry basket. It is possible he went to the convenience store, but there is no evidence he was carrying anything when he came back.

[32] Mr. Plant argued that the police could have checked to see what floor Mr. Thomas went to. Detective Constable Tattersall testified that based on where he was seated in the lobby he could not see where the elevator went. He was cross-examined on the point of whether or not he could have gone and checked where the once Mr. Thomas was in the elevator.

[33] I accept Detective Constable Tattersall’s explanation. In any event, in my view it is irrelevant whether the police could have done something else or should have done something else to corroborate whether Mr. Thomas was dealing drugs on another floor of the building or was merely going to the convenience store to buy cigarettes. The real question was whether the observations that they did make were capable of corroborating the source. They obviously were. It is clear that the observations of the police here corroborated salient details provided by the source about Mr. Thomas’s drug trafficking. Indeed, the corroboration is very strong. The observations did not corroborate well-known innocent facts.

[34] In any event, the police do not have to confirm actual criminality. They need only corroborate material elements of the source’s story: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451. Material elements cannot include well-known innocent facts.

[35] I turn now to the so-called “bad character” evidence. Mr. Plant argues that the “bad character” evidence consists of the following:

• Police reports that say Mr. Thomas smoked marijuana or was found in a high-drug area; and,
• Information that Mr. Thomas is associated with Mr. Guysa, who is a drug dealer.

[36] The first police report noted that Mr. Thomas was investigated for smoking marijuana and playing loud music. The key point about that report is that he was investigated at his apartment – 201 Sherbourne Street, Apartment 101. The second report noted that when Mr. Thomas was investigated in a high-drug area (not coincidentally near Sherbourne Street), he gave his address as 201 Sherbourne Street, Apartment 101. The ITO noted that Mr. Thomas does not have a criminal record.

[37] Any contact between the target and the police that has resulted in an investigation or a charge can be characterized as bad character evidence. That does not make it problematic in an ITO. It should hardly come as a surprise to find that many people under investigation by the police are, in fact, criminals. The real question is whether the information is gratuitous or relevant for the purpose of corroborating an important fact. The past activities of a target may well be relevant: Debot at para. 56-58.

[38] Here, the obvious point of those reports is that they confirmed Mr. Thomas’s address as the place to be searched, and he provided the address himself. Marijuana-smoking and presence in a high-drug area are incidental to the reports (and explain why Mr. Thomas was investigated). I do not accept that this was a form of bad character evidence.

[39] I also disagree that the association between Mr. Guysa, a known drug dealer, and Mr. Thomas was a form of bad character evidence. The ITO stated that Mr. Guysa and Mr. Thomas “work as a team” to deal drugs at 201 Sherbourne, with Mr. Guysa supplying drugs to Mr. Thomas.

[40] I must point out that there is nothing specific in the redacted ITO justifying that statement. If that were the only aspect of the ITO justifying the search it would certainly not be enough.

[41] The ITO also noted, however, that Mr. Guysa faced outstanding drug charges and that Mr. Thomas was his surety. The ITO then went on to describe the outstanding charges against Mr. Guyusa. The ITO further described bail compliance checks showing that Mr. Guysa was not living with his parents, as required by his bail – something that Mr. Thomas was required to enforce. In fact, Mr. Guysa was living with Mr. Thomas, in violation of the bail. There is no question that Mr. Guysa faced outstanding drug charges. There is also no question that he was in breach of his bail. Not only was Mr. Thomas not enforcing the bail, he was facilitating the breach. I think that the police were obligated to put that information into the ITO, and the justice of the peace was entitled to consider it.

[42] Overall, I find that the information provided by the source was corroborated by the police.

(d) After considering the totality of the circumstances was there a basis upon which the justice of the peace could issue the warrant?

[43] In my view the ITO set out very strong support on the compelling and corroboration branches of the Debot test. The ITO was weaker on credibility. Although the weakest of the three c’s, the information provided by the source was still somewhat credible. In any event, the weakness on credibility was more than compensated for by strength in the other two c’s. There was a very solid basis upon which the justice of the peace could issue the warrant.

DISPOSITION

[44] The application is dismissed. As there was no violation of s 8 of the Charter, there is no need for me to consider s. 24(2).

R.F. Goldstein J.

Released: January 28, 2016

CITATION: R. v. Thomas, 2016 ONSC 640

COURT FILE NO.: CR-14-90000800-0000

DATE: 20160128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNIQUE THOMAS

REASONS FOR JUDGMENT

R.F. Goldstein J.