Court File No. 750/15

Citation: R. v. Aulenback, 2016 ONSC 6523

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

KYLE AULENBACK

R E A S O N S F O R D E C I S I O N

BEFORE THE HONOURABLE MADAM JUSTICE L. GAUTHIER

on September 8, 2016, at SUDBURY, Ontario

APPEARANCES

D. Bradley Counsel for the Federal Crown

R. Rusonik Counsel for Kyle Aulenback

Thursday, September 8, 2016

R E A S O N S F O R D E C I S I O N

GAUTHIER, J. (Orally):

In the applications filed, the applicant, Kyle Aulenback, seeks an order pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms excluding the evidence which is the product of each of the two informations to obtain, which I refer to as ITOs, referred to in the facts which I will come to. The request as framed is to have the product of the ITOs excluded from consideration on all subsequent warrant applications and from the grounds for a warrantless search and seizure because of the breach of the applicant’s s.8 Charter right to be secure against unreasonable search and seizure.

The application involves two separate ITOs and at the outset of the hearing, counsel agreed that the sole issue to be determined was whether there was a breach of s.8.

The facts are set out in paragraphs two to five of the applicant’s factum as follows:

On August 1st, 2013, David Burns, a peace officer and member of the Royal Canadian Mounted Police, swore an information to obtain seeking production orders for the records detailing the applicant’s rentals of two motor vehicles; and,

On October 30th, 2013, the same peace officer swore an information to obtain based upon, among other claimed grounds, the materials obtained as a result of the production orders issued pursuant to the August 1st, 2013 ITO seeking the following:

1. a production order for the records detailing the applicant’s rentals of other motor vehicles;

2. a production order for the records detailing the applicant’s use of a cellular phone registered to Angele Chartrand;

3. a tracking warrant for various vehicles driven by the applicant.

The statutory provisions engaged are s.487.012(3) of the Criminal Code as it was at the time, and ss.492.1 and 492.2 of the Criminal Code. Although I'm not reading them out, the provisions of those sections form part of my reasons.

The ITO sworn August 1st, 2013:

I start with the offences described, the purpose of the application, and the grounds for belief. RCMP Officer Burns applied for a production order under s.487.012. He indicated that he had reasonable grounds to believe that the offences of trafficking in a substance and possession for the purpose of trafficking had been or would be committed by the following persons: Phillip Boudreault; Kyle Aulenback, the applicant; and Robert Fox. The purpose of that application was to obtain a production order for Rogers Communication cellular telephone records for Boudreault and a production order for Avis Car Inc. vehicle rental information relating to two specific vehicles rented in the applicant, including odometer readings, personal information of the renter, information provided by the renter, and any other identified drivers, et cetera.

The police theory was that Boudreault, known to police as a member of the Hell’s Angels, was actively trafficking a variety of drugs including cocaine, marijuana, and oxycodone. He was “taxing” local drug dealers, taxing being the collecting of money from other drug traffickers to allow them to continue their enterprise of selling drugs other than Boudreault’s.

Aulenback was closely associated to Boudreault, transporting drugs for him using rental vehicles to travel to southern Ontario to pick up the drugs.

Finally, the theory was that Boudreault’s half brother, Robert Fox, was selling cocaine for him.

The police believed that the information sought would assist in the investigation and verify police suspicion that the applicant had committed the offences indicated. They believed that obtaining the records sought for the two rental vehicles that the applicant was observed driving during the surveillance would assist in determining the accuracy of the belief that the applicant was travelling to southern Ontario to pick up cocaine for distribution in Sudbury.

Information provided by the confidential informants:

Confidential informant A provided the following information to Staff Sergeant Asunmaa in March 2013:

1. Rob Fox is Phil Boudreault’s half brother;

2. Rob Fox is selling significant amounts of cocaine and oxycodone for Phil Boudreault;

3. Rob Fox sells out of Rock’s Bar on Notre Dame and also makes drug deliveries.

Then in May of 2013, the same informant provided the following information to the same officer:

1. Rick Pellat is moving cocaine;

2. Rob Fox is selling cocaine for and collecting money owed to Phillip Boudreault.

Finally, in June of 2013, Staff Sergeant Asunmaa received the following information from the same confidential informant:

1. Wayne Zion is dealing cocaine for Phil Boudreault;

2. Phil Boudreault continues to tax people who sell drugs and do not buy his cocaine and marijuana;

3. Kyle Aulenback is Phil Boudreault’s main distributor of cocaine;

4. Kyle Aulenback goes down south to pick up cocaine from Boudreault and upon his return, cuts the cocaine for Boudreault;

5. Aulenback’s means of going down south to pick up cocaine from Boudreault are unknown.

The ITO states that “unless otherwise stated, the information provided is based on personal knowledge.”

In February 2013, confidential informant B provided the following information to the same officer:

1. Rob Fox is Phil Boudreault’s half brother;

2. Rob Fox is dealing cocaine for Phil Boudreault at the Rock’s Bar on Notre Dame in Sudbury.

Again, the ITO states that “unless otherwise stated, the information provided by this informant is based on personal knowledge.”

Background information about the confidential informants:

Confidential Informant A:

This informant has been providing information for blank time and is primarily handled by Staff Sergeant Asunmaa. This informant has no convictions for dishonesty-related offences such as public mischief, obstruction of justice, or fraud. This informant is motivated to provide information for either monetary compensation or assistance with his or her own criminal charges. The specific motivation is held back to prevent the possible identification of the informant. This informant has provided information on nine occasions in the past, seven of which have led to street arrests where drugs were seized and two of which have led to CDSA search warrants where drugs were seized, leading to charges and convictions.

Confidential Informant B:

This informant’s primary handler is Staff Sergeant Asunmaa. This informant has been providing information for blank amount of time. This informant has no convictions for dishonesty-related offences such as public mischief, obstruction of justice, or fraud. The motivation for providing information is either for monetary compensation or assistance with criminal charges. Again, the specific motivation is held back to prevent the possible identification of the informant. This informant has provided information on five occasions which have led to street arrests where drugs were seized, on six occasions which have led to CDSA search warrants, and on three occasions which have led to Criminal Code search warrants for stolen property.

Police surveillance and investigation:

The persons suspected of the drug offences were the subject of surveillance from April 5th, 2013 to July 9th, 2013. The applicant was observed on numerous occasions associating with Boudreault. He was also observed associating with Fox.

The applicant was observed driving a rental vehicle on two occasions during the surveillance period. Those periods included instances of his association with Boudreault and/or Fox.

The database queries made as part of the police investigation reveal that Boudreault has a criminal record with 25 convictions between 1996 and 2010, all in Sudbury and none drug-related. The check revealed the residential address of Boudreault, where the applicant was frequently observed to be present. The check revealed that the applicant has four convictions between 2002 and 2004, all in Sudbury and none drug-related. Fox has three convictions, none drug-related.

The applicant, Mr. Aulenback, does not challenge the sufficiency of the information provided in the ITO relating to (b) and (c) of s.487.102(3), that is, reasonable grounds to believe that documents will afford evidence and reasonable grounds to believe that the person who will be subject to the order has possession or control. Rather, it is the applicant’s position that the ITO dated August 1st, 2013, is both facially and subfacially invalid. The affiant deposed that he had reasonable grounds to believe that the applicant and others had committed or would commit the offences of trafficking and possession for the purpose of trafficking. The affiant at (10) outlined the suspicion that the applicant was “renting vehicles in Sudbury for the purpose of picking up cocaine from an unknown location in southern Ontario.”

The applicant, Mr. Aulenback, submits that the statutory prerequisites were not met in the ITO of August 1st, 2013. He suggests the statutory language does not grant jurisdiction to a justice or judge to grant a production order on the basis of mere suspicion or an affiant’s reasonable belief that an offence will be committed. The issuing justice was not permitted to guess which was the affiant’s actual belief and what was mere suspicion. The ITO does not contain as the statute requires a statement by the affiant to establish that he believes that it is reasonably probable that the applicant is renting vehicles for the purposes of trafficking narcotics.

With regard to the subfacial validity of the August 1st, 2013 ITO, the applicant maintains that it did not disclose reasonable grounds to meet the requisite standards for the production order to be granted. Specifically, he says that the information provided of the applicant’s involvement in illegal drug trafficking was unsourced, not compelling, and the confirmation claimed for the information was without value or significance.

As well, the applicant submitted that the credibility of the informants was suspect. He says that the ITO was insufficient to justify the granting of the production order as the three c’s, as we refer to them, that is, information that’s compelling, credible, corroborated was not satisfied. The information provided by the two informants may well be simply rumour or gossip given that there was nothing in the ITOs to indicate that the information came from the informant’s personal observations. No facts were provided to enable a justice to conclude that the information provided by the informants was based on firsthand observation.

The applicant argues that there are no facts to support an inference that the confidential informants are relating firsthand knowledge as opposed to hearsay. The ITOs are devoid of details about the relationship, if any, between the informant and the persons about whom he or she is providing the information or about any proximity between the informant and those persons. There is little redacted information in the ITOs which suggests that there were few, if any, details about how the informants came to know the information that they were sharing.

The information provided amounts to conclusory statements only, says the applicant. There is nothing to indicate that the statements are not based solely on hearsay, rumour, or gossip. No information has been provided about:

1. Informant’s lifestyle;

2. Whether there was a caution by police about the consequences of providing false information;

3. Possible outstanding criminal charges;

4. The possibility of convictions for offences other than those very specifically identified;

5. Possible animus or other motivation to provide false information.

He says there was insufficient evidence of the informants’ criminal records to permit an assessment of the informants’ credibility. Even if the informant had provided credible and reliable information in the past, that is of no assistance to the Justice of the Peace entertaining the new application. Without knowing the source of the informants’ information, there can be no assessment of the informants’ credibility and reliability. Without sufficient information to infer firsthand knowledge by the informant of the information shared, a history of past credibility and reliability does not bolster what essentially is a conclusory statement.

As well, the currency of the information offered by the informants is an issue to the applicant. The information provided by one informant was received in February 2013 and the information provided by the other was obtained in June of 2013. The lapse of time between the receipt of the information and the deposing of the ITO was significant enough to prevent the justice from inferring that the information was still valid. I note that this was submitted in the applicant’s material but was not expanded upon in argument.

Still continuing with the applicant’s position, the voluminous evidence of corroboration is, to a large extent, confirmation of innocent facts and does not assist in enhancing confidence in the tips themselves. Without more, the evidence of association, even with known criminals, does not raise the facts beyond the probability of innocent association or coincidence or mere suspicion.

The applicant points out that the information provided by Confidential Informant B in both ITOs does not relate in any way to the applicant. Informant B does not even name the applicant.

With regard to the August 2013 ITO, it is submitted that the standard to establish reasonable belief has not been met and that is the standard for a production order. Without the standard being met in the first ITO, which results in a breach of s.8, he says the standard of reasonable belief required for the second production order based on the October ITO would not be met and the reasonable suspicion test required for the tracking order and number recorder warrant would also not be met.

He says, finally, the police engaged in bootstrapping and the unconstitutionally obtained information from the August 1st, 2013 production order must be excised from the ITO dated October 30th, 2013.

Respondent’s position:

The respondent reminds me to consider the entirety of the information that was before the issuing justice and to consider the impact of all of the information, to consider everything collectively and not piece by piece.

The offences in question are believed to be committed by the involved persons together. They worked together and the information provided should be assessed in that context. The information provided was based on the informant’s personal knowledge. It was not said to be based on community knowledge or second-hand information.

Still dealing with the respondent’s position, with regard to whether the information is compelling, the information provided is detailed: nature of the drugs, where they are sold, where they are obtained, who cuts, and who sells. It covers the hierarchy of the drug-selling operation with Boudreau at the top and the others working for him. There are details about taxing, which I've already described. This is not information that is readily available to the public. It is more than mere gossip or rumour and it would require personal firsthand knowledge.

The respondent submits that the track record of the informants is very meaningful to their credibility. The informants have a positive track record of providing reliable information. The Crown used the descriptor “seasoned” to describe them. Failing to provide the complete criminal record of the informants is not fatal to the ITO given that they are known and tested police informants. The same response is offered for not giving the informants a caution about providing false information in the context of these ITOs.

The respondent points to the observations of the consistent and repeated communications between the applicant and Boudreau and the observation of the applicant driving a rental vehicle on two occasions as corroborating the information obtained from the informants. He stresses the repeated association of the applicant with each of the two individuals and the association of the two individuals themselves as corroborating the information provided. He says there is consistent, frequent, and repeated association, personally and by way of telephone. There is confirmation of the fact that Boudreau and the applicant were together at Rock’s Bar and the applicant was observed driving a rental vehicle twice.

Finally, the respondent points to the context in which production orders are sought. It is an evidence-gathering exercise and is not akin to arrest and detention of an individual.

With regard to the second ITO, that is, the one of October 30th, 2013, the Crown submits that the applicant has no standing to challenge its sufficiency with regard to the telephone given that the telephone to whom the tracking order and number recorder orders were sought is not the property of the applicant, but rather, belongs to Angele Chartrand.

Still dealing with the second ITO, the respondent points out that Informant A provided additional or new information or detail, i.e. he specified that the applicant, Aulenback, travels “to Toronto” for the cocaine and that he uses rental vehicles for that purpose, and that he is also “dealing” the cocaine. As well, the Crown points out that the information provided by Informant A was given voluntarily without inducement of any kind.

Statutory requirement for informations to obtain and the test to be applied when a justice or a judge views an ITO:

The test that a justice or judge reviewing an ITO must use is clearly stated in the relevant Criminal Code provisions. Reasonable belief, the higher threshold, is based on the probability of crime and must be supported by objective facts. Reasonable suspicion, the lower threshold, is based on the possibility of crime but must also be supported by objective facts. Both tests can be applied when a crime has been committed or will be committed. Furthermore, an ITO can be used to verify police suspicion that a crime occurred or will occur.

Where these tests have the potential to create confusion is with respect to the crime committed. The tests apply to crimes that have been committed or will be committed.

I pause here to say that in my estimation, I may well be wrong, but it’s my conclusion that defence counsel may have conflated reasonable grounds to suspect with the phrase a “suspected crime.”

The test of reasonable grounds to believe can be used to verify the reasonable suspicion that the offence was committed. It is not limited to an offence that has been committed, and I'm referring to R. v. Fedossenko, 2013 ABCA 164, paragraph eight.

Burden, analytical framework, and applicable principles:

The burden of establishing that any information obtained was as a result of the searches and the searches were essentially warrantless because of the defects in the ITOs and that his s.8s were violated is on the applicant on a balance of probabilities. As well, he must, if successful in that regard, establish that the remedy sought, exclusion of the evidence, is appropriate in the circumstances, and I know I don’t need to go there today.

There is a presumption of validity. The description of the analytical framework in the sufficiency analysis of an ITO is succinctly set out by Ontario Court of Justice Melvyn Green in R. v. Bernabe, 2014 ONCJ 628 at paragraph 14:

“Charter grounded challenges are ordinarily founded on a claim of insufficient probable cause for their issuance. The Charter review is not a de novo hearing. The test on review, rather, is whether the issuing justice ‘could’ – not ‘would – have issued the warrant on the basis of the sworn ITO before him or her. The case of R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253 at paragraph 40 affords one of many Supreme Court re-affirmations of these long-settled propositions:

‘The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.’”

This hearing is not a re-hearing or a hearing de novo. As the reviewing justice, I'm not to substitute my view for those of the issuing justice. The review that I conduct requires a contextual analysis of the record as a whole and not a piecemeal dissection and analysis of individual pieces of evidence.

As previously stated, and as articulated in R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, R. v. Araujo 2000 SCC 65, [2000] 2 SCR 992, and other cases, the test or standard to be applied in a review is whether the ITO contains sufficient reliable evidence that might reasonably be believed, on the basis of which the authorizing justice could have concluded the conditions precedent required to be established were met. As was said in Morelli, “The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the order or warrant could have issued.”

A review of production orders or tracking or number recorder orders is done through the lens of the totality of circumstances test described in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140. As already stated earlier, there are three questions to be asked:

(1) is the information compelling;

(2) is the source of the information credible;

(3) was the information corroborated by police investigation prior to acting on the order.

As Justice Wilson stated in Debot, there is no separate test for each of these factors. Rather, “the totality of the circumstances must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by the strengths in the other two.”

Applicable principles:

In applying for a warrant under the sections that were engaged here, an exceptional duty is imposed on an affiant as he or she is seeking ex parte relief. He is required to provide a balanced representation of the facts. Facts favourable to and facts unfavourable to the case must be provided. This duty of full and frank disclosure is required to reduce the obvious risk of injustice inherent in situations where a justice is asked to grant an order without hearing from the other side.

Whether an ITO dependent on information from a confidential informant can amount to reasonable grounds to authorize a search or, in the case at bar, to authorize production of information and tracking of an individual’s movements depends on the consideration of the totality of the circumstances, according to Debot. There are four factors to consider in the totality inquiry:

(1) does the tip or information contain sufficient detail to ensure that it is based on more than mere rumour or gossip;

(2) is the source or means of knowledge of the informer disclosed;

(3) are there sufficient indicia of the informant’s reliability, i.e. a history or pattern of having provided reliable information in the past; or

(4) is there confirmation of part of his or her story by police surveillance.

That’s described in paragraph 15 of the Bernabe decision.

Debot refined the aforesaid four criteria to three general factors, which I've already made reference to:

(1) was the information predicting the commission of a criminal offence compelling;

(2) where the information is based on information from outside the police force, was that source credible; and

(3) was the information corroborated by police investigation prior to making the decision to conduct a search.

Compelling refers to considerations relating to the reliability of the tip such as degree of detail provided and the informant’s means of knowledge, i.e. from firsthand observations or from hearsay, gossip, or rumour.

Credible refers to the informer’s credibility and includes a consideration of his or her motivation, his or her criminal record, his or her past history of providing reliable information to the authorities.

Corroboration involves a consideration of any supporting information yielded by police investigation. The objective is to generate independent confirmation of the representations conveyed by the informant and thus establish confidence in his or her account. That’s paragraph 22 of Justice Green’s decision to which I've already referred.

The corroboration need not be of actual criminality as alleged but must be more than confirmation of neutral or trivial events. The three factors are to be considered. They do not form a separate test on an individual basis. As indicated already, “weaknesses in one area may, to some extent, be compensated by strengths in the other two areas,” Debot paragraph 215.

Applying the statutory framework in governing principles to this case:

I conclude for reasons that follow that the applicant failed to discharge his burden of establishing insufficient credible and reliable evidence to allow the justice to find reasonable and probable grounds to believe that the applicant was trafficking in narcotics.

The information provided by each confidential informant was sworn to be based on personal knowledge. This would seem to imply direct knowledge. It is, in the context of these ITOs, more than the informant purported to have in R. v. Muncaster, 2000 CanLII 22744 where the words “personally aware” were misleading and were found by the court to not amount to personal knowledge. The informant in that case was relying on “general information from within the community” which raised the risk that the basis of the information was nothing more than rumour and gossip in the community. The specific words used falsely suggested that the informant had witnessed communications or otherwise observed himself the information he was relating, and that was not the case.

The August 1, 2013 ITO wording in the case before me, “information provided is based on personal knowledge,” however, does not equate with firsthand knowledge. The fact that the underlying circumstances of the informant for his or her knowledge, and this applies to both A and B, is not set out in the ITOs is a legitimate concern. That, however, does not end the inquiry. Simply because the information is not said to come from firsthand knowledge does not by itself make it a bald or mere conclusory statement. There is texture and detail to the information.

I must consider the totality of the circumstances, in other words, assess whether the information before the authorizing justice was compelling, credible, and corroborated. “One circumstance is not elevated above the others as an essential prerequisite to the existence of reasonable grounds,” R. v. Caissey 2007 ABCA 380, paragraph 23. Again, to quote Debot, “Each of the three factors does not form a separate test. Weaknesses in one area, to some extent, may be compensated for by strengths in the other two.”

The information provided by Informant A is reasonably compelling in the sense that it provides important detail. It goes beyond being merely a conclusory statement. It is not simply a statement to the effect that the applicant has committed offences without more. It is not a bold conclusory statement. As the respondent submitted, the information includes the names of other persons involved in the alleged criminal enterprise; their respective roles in the organization, i.e. who sells and distributes the drugs, who cuts, the drugs, and who’s in charge of the operation; and who travels to southern Ontario to get the drugs, namely, the applicant. The applicant was described by Informant A as being Boudreau’s main distributor.

The information provided by Informant B, although not referring to the applicant, does confirm what Informant A said about Fox, one of Boudreau’s alleged associates in the drug trade, specifically as it relates to cocaine. The information provided and said to be the grounds (together with the corroboration) to believe that the applicant has committed the offence of trafficking is not mundane, generic, nor relating to innocuous or prosaic events as described in the Bernabe decision and in other ITO cases. The details do not relate to static, everyday circumstances. The information offers detail that goes beyond what is publicly known or readily available.

The information was provided in February, March, and June 2013. Unlike information relating to the presence of illegal substances at a particular location at a specific time, the subject information relates to an allegedly ongoing criminal enterprise. It does meet the constitutional requirement of currency so as to reasonably permit the inference that the applicant has committed the offences alleged.

I turn now to the reliability of the information, which is directly related to the credibility and reliability of the informants. The credibility of the informants can serve to allay concern about the failure of the informants to specify their source of knowledge, and that proposition is taken from the R. v. Whyte [2010] ONSC 979 case.

The credibility of the informants in this case is inextricably tied to the information provided by them. As in Whyte, the credibility of these informants goes beyond the general sense of having provided reliable information in the past. The information previously provided related directly to illegal drugs, Informant A on nine occasions, Informant B on 14 occasions.

The fact that the complete criminal records of the informants were not provided is of little consequence on the facts of this case. Unlike the tipsters in Bernabe, R. v. Zammit 1993 CanLII 3424, and R. v. Castillo 2011 ONSC 3257, the informants in this case were known and proven and neither had a record for offences of dishonesty. This was not a case where “there was no historical, experiential, or institutional reason to infer the reliability of the informant,” and that’s taken from Bernabe.

Additionally, the failure of the ITO to refer to a caution being given to the informants has no impact on their credibility given their past track record with police, and that’s from R. v. Nguyen 2015 ONCA 753.

The evidence relating to the informants’ credibility was sufficient to permit the justice to conclude that the informants were credible.

The third prong of the test, corroboration:

The corroborating evidence was obtained both as a result of surveillance conducted and database checks. The surveillance was extensive. It was conducted between April 5th, 2013 and July 9th, 2013 in Sudbury. It revealed consistent, frequent, and repeated association between the applicant and Boudreau at Boudreau’s residence and numerous other locations in Sudbury, including Rock’s Bar identified by Informant B as a location where Boudreau’s drugs are sold. There are some 29 instances of association between Boudreau and the applicant, some occurring more than once in one day.

The surveillance also disclosed association between the applicant and Fox and that the applicant drove a rental vehicle on two occasions.

The database queries provided or confirmed Boudreau’s residence, the biological relationship between Boudreau and Fox, as well as the criminal records referred to earlier in these reasons.

The corroboration in this case is far different than the three hours of field investigation in Bernabe, which provided nothing to meaningfully enhance confidence in the informants. This is also not a case like R. v. Hosie 1996 CanLII 450 where the credibility of the informant could not be assessed and few details were supplied, thus elevating the level of verification required. Again, the verification of the repeated association of Boudreau, Fox, and Aulenback is not without impact. It is not confirmation of mundane, trivial, or widely known facts. It tends to substantiate the reliability of the informant information.

Some general comments about the ITO of August 1st, 2013:

Firstly, there is no suggestion that the affiant, Officer Burns, in any way failed to discharge his duty in connection with providing full and complete disclosure to the justice. The applicant has not pointed to any untruths, misstated facts, misleading statements, inconsistencies, omissions, or erroneous information in the ITO as existed in Morelli, Muncaster, and R. v. Strachan 1988 CanLII 25 (SCC), [1988] 2 SCR 980. There is no suggestion of bad faith on the part of the police. There are no drafting irritants as described by Justice Green in Bernabe.

I conclude that the issuing justice could reasonably have come to the conclusion that there were reasonable grounds to believe that the applicant had committed the offence of trafficking. Put another way, I conclude that there was “at least some evidence that might reasonably be believed on the basis of which the production order could've been granted,” quoting from Araujo.

The totality of the circumstances in this case meets the standard of reasonableness. Accordingly, the application fails with regard to the ITO of August 1st, 2013.

The ITO of October 30th, 2013:

This ITO again included an application for a production order as well as tracking and number recorder information. The same individuals and the same offences as described in the August 1, 2013 ITO were specified. The application was for additional car rental records and for phone records of a cell phone believed to be used by the applicant to verify the police suspicion that the applicant was trafficking in cocaine. Police wanted to confirm that the applicant was using rental vehicles to travel to the GTA from Sudbury to pick up cocaine for distribution in Sudbury, to determine his travel habits, and mileage travelled.

As well, police sought to identify the applicant’s associates through the production of call details, text messages, and subscriber checks to assist in determining whether the applicant was picking up the cocaine. Police also wanted to pinpoint the specific area in the GTA in which the applicant was getting the drugs.

The tracking warrants were sought to assist in locating the applicant, monitoring his movements, and possibly identifying drug stash sites.

Sections 492.1 and 492.2 of the Criminal Code, the provisions of which I've already made reference to, were engaged with regard to this ITO. With regard to those two sections, the ultimate question is whether the issuing justice could've issued the warrants on the basis of reasonable suspicion of an offence being committed, which is a relatively low threshold.

The overview provided the following information. The August 2013 production orders resulted in the identification of cell phone numbers believed to be used by Boudreau, Fox, and Aulenback. It also resulted in confirming that Aulenback had rented vehicles on several occasions, two of which are specified: once for a 24-hour period during which a distance of 831 kilometres were driven; and once for a seven-day period with a recorded mileage of 1,668 kilometres.

The October 30th, 2013 ITO contained much of the same information as was contained in the August 1st ITO. It included further surveillance, however, of the applicant’s association with Boudreau and more detail regarding Informants A and B.

The information provided by the confidential informants in the October 30, 2013 ITO:

Informant A:

In addition to providing essentially the same information as before, that is, the applicant is Boudreau’s main cocaine distributor, travelling down south to get the drugs, this informant provided on an incremental basis the following information:

• June 2013: after the applicant returns from having picked up the cocaine for Boudreau, he cuts it for him;

• July 2013: Aulenback has been driving rental vehicles to travel to and from Toronto to pick up cocaine and he is also dealing the cocaine;

• September 2013: Aulenback is still the main mover of Phil Boudreau’s cocaine and he continues to pick it up in Toronto. Fox is selling a lot of the cocaine and collecting money;

• October 2013: Aulenback is continuing to travel to Toronto to pick up, transport, and deal cocaine for Boudreau. Aulenback picks up the cocaine in Toronto and he and Fox are the main distributors of this cocaine.

This information was said to be based on personal knowledge.

Informant B provided no new information.

Informant A’s background was described largely as it had been in the August 1 ITO, but with added information. In each of the prior instances of having provided information, evidence seized by police was consistent with the information provided. This informant has never provided information which was found to be false, misleading, or incorrect. The information is being provided voluntarily and this informant is familiar with cocaine and street terminology. His handler has had conversations with him regarding cocaine packaging, pricing, and concealment. He is very knowledgeable.

Surveillance and investigation:

Surveillance was conducted between May 6th, 2013 and October 16, 2013. Consistent, repeated, and frequent association between the applicant and Boudreau at different locations, including Rock’s Bar, was observed, as was association between the applicant and Fox. The use of rental vehicles by the applicant was also noted on three occasions between April 30th and August 7th, 2013, in addition to the two instances related in the earlier ITO.

Once again, the applicant submits that without the information provided by Informant A being firsthand, the information is neither compelling nor is its credibility verifiable.

Additionally, the evidence of association could be simply about innocent association. Finally, the applicant was relying on the invalidity of the first production order to prevent the additional information from being receivable by the issuing justice.

The applicant agrees that the threshold for the tracking and number recorder orders is lower than that for the production orders. The police need only have reasonable grounds to suspect as opposed to believe, and the question is whether there was a reasonable possibility rather than a reasonable probability of the commission of an offence.

For its part, the Crown asserts, and I've made allusion to this, that the applicant has no standing to challenge the validity of a tracking order and number recorder order relating to Angele Chartrand’s cell phone as he is not the owner of the phone. The respondent also relies on the new information provided by Informant A and that the information was provided voluntarily.

Turning to the preliminary objection by the respondent based on the applicant’s apparent lack of standing:

This issue is not raised in the respondent’s factum nor was any case law made available to me with regard to the respondent’s position. Nonetheless, the applicant was content to respond and did so, indicating that the applicant’s use of his wife’s cell phone did indeed give him a reasonable expectation of privacy in the telephone.

The Ontario Court of Appeal in a recent decision, R. v. Merelle 2016 ONCA 647, released August 29th, said this: “s. 8 of the Charter protects a reasonable expectation of privacy. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.” The historical use of the property or item and the existence of a subjected expectation of privacy are two factors which can establish a reasonable expectation of privacy. Like Justice Henderson did in R. v. McGean et al 2016 ONSC 3541, I find that the applicant does have standing to challenge the validity of the production order and the tracking number recorder warrants for Angele Chartrand’s cell phone. The Crown intends to use the evidence of the applicant’s use of that cell phone and the information about calls, et cetera, against him in this case. In such circumstance, the applicant does have the right to challenge the validity of the warrants. On all of the facts, more particularly, the historical use of his spouse’s cell phone and the subjected expectation of privacy which would exist, the applicant has established a reasonable expectation of privacy.

I'm not going to repeat the earlier comments that I made about the validity of the August 2013 production order, but I have no difficulty in concluding that the subsequent ITO did contain sufficient reliable evidence that might reasonably be believed on which basis the justice could make the production order. The material submitted did provide the reasonable grounds to believe that the offence alleged had been committed.

With regard to the 492 warrants, the information provided supported a reasonably grounded suspicion of the commission of an offence. The standard of reasonable suspicion addresses the possibility of uncovering criminality, not the probability of doing so, as is the case for reasonable belief.

Therefore, the application also fails with regard to the subsequent orders made on the strength of the October 30th ITO.

The application is dismissed.

M A T T E R A D J O U R N E D

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, M. J. Boucher, A.C.T., certify that this document is a true and accurate transcript of the recording of HMTQ v. Kyle Aulenback, in the Superior Court of Justice, held at Sudbury, Ontario, on September 8, 2016, taken from recording No. 4011_CrtRmL_20160908_132152__9_GAUTHIL.dcr, which has been certified in Form 1.

(Date) (Signature of authorized person)

Certificate of Transcript (rev. 03/04)

TRANSCRIPT ORDERED: September 23, 2016

TRANSCRIPT COMPLETED: October 5, 2016

ORDERING PARTY NOTIFIED: October 21, 2016