Court File and Parties

CITATION: R. v. Trought, 2016 ONSC 7919

COURT FILE NO.: CR-15-9000415-0000

DATE: 20161216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL TROUGHT

COUNSEL:

Chris De Sa, for the Crown, Respondent

Stephen Menzies, for Mr. Trought, Applicant

HEARD: October 24-28, 2016

BEFORE: R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on s. 8 application

[1] Mr. Trought is a drug dealer. On July 30, 2013 Toronto Police arrested him. He was driving a rented Ford Fusion. The police seized a key fob from him for Suite #520, 80 Harrison Gardens Boulevard in Toronto. They obtained a search warrant from a judge of the Ontario Court of Justice for that location as well as for the car. The warrant was based to a significant degree on information that the police received from a confidential informant. The police did not know his identity at the time he was arrested.

[2] The police executed the warrant on the residence and the car shortly after it was signed. They seized a total of 2.52 kilograms of powder cocaine in several different packages, 7 grams of crack cocaine, and $440 in cash from the residence. They seized three cell phones from the car.

[3] Mr. Trought makes an application under s. 8 of the Charter. His counsel, Mr. Menzies, initially argued that the police fabricated the existence of the informant. In submissions he backed off from that position slightly, and argued that the information provided by the informant – if the informant existed at all – was obviously false. He essentially argues that the events as described by the informant were absurd on their face and were not credible, not compelling, and not corroborated by the police.

[4] For the reasons that follow, I respectfully disagree. I find that there was a basis upon which the issuing judge could have issued the warrant. I also find that there is no evidence of fraud, misrepresentation, or non-disclosure on the part of the police. The application to exclude the evidence is dismissed.

PROCEDURE ON THE VOIRE DIRE

[5] Mr. Menzies initially sought to cross-examine Constable Teixeira but then abandoned the application. Mr. De Sa, Crown counsel, provided a draft proposed judicial summary of the excised material. I reviewed the un-redacted warrant and compared the proposed judicial summary. I was satisfied that the draft proposed judicial summary accurately reflected the excised material. I was also satisfied that the draft proposed judicial summary was sufficient to allow the defence to challenge the pre-conditions to the warrant when considered along with the un-redacted material: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at paras. 68-72; R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont.S.C.). The proposed draft judicial summary then became the “official” judicial summary and was made an exhibit. Menzies determined that he did not need to go beyond the judicial summary. It was his view that the ITO was so deficient on its face that it was unnecessary to go beyond that.

[6] I was provided with the un-redacted version of the search information. My review indicates that there were more than ample grounds upon which the judge could have issued the warrant. I also respectfully take the opposite view from Mr. Menzies. Even the redacted information provides sufficient grounds upon which the judge could have issued the warrant.

THE INVESTIGATION

[7] On July 30, 2013, Justice Marshall of the Ontario Court of Justice issued a warrant under s. 11 of the Controlled Drugs and Substances Act to search 80 Harrison Gardens Boulevard, Suite 520. The warrant was supported by an information to obtain (which I will refer to as the “ITO”). Constable Teixeira of the Toronto Police swore the ITO.

[8] Unlike the Criminal Code, there is no prescribed form under the CDSA for a search warrant or an ITO. Typically, however, CDSA warrants and ITOs are in the same format as those issued pursuant to the Criminal Code.

[9] In this case, Constable Teixeira’s ITO set out the items to be searched for in Appendix “A”. Appendix “B” set out the offences under investigation. Appendix “C” set out his actual grounds. Appendix “D” set out the ITO of Constable Wallace. That ITO concerned a search of 165 Legion Road, Unit 1222. Constable Teixeira’s ITO incorporated Constable Wallace’s ITO by reference.

[10] Constable Wallace’s ITO sought a search warrant for 165 Legion Road, Unit 1222, and two “gun safes”. Constable Wallace’s ITO was sworn on July 30, 2013. Constable Teixeira’s ITO was sworn later the same day, July 30, 2013.

[11] Constable Wallace swore the following: On July 29, 2013, at 1:43 am an anonymous caller told Toronto Police that three or four males with duffel bags and masks were trying to break into a sliding door at 165 Legion Road. Uniformed police officers responded almost immediately. They found two large safes in a stairwell. The police determined that there had been a break-in at Unit 1222. The safes had been removed from that unit. Police officers entered the unit for safety reasons. They did not find clothes or other items in the unit indicating that someone lived there. They did find items that Constable Wallace, an experienced drug investigator, noted were consistent with the unit being a drug stash house. According to Constable Wallace’s ITO, when the safes were moved by the police one was dropped. The police found numerous bundles of currency and what appeared to be oxycodone pills. The currency had not been counted at that point. Constable Wallace requested a search warrant to seize items from Unit 1222, as well as the two safes. Justice Marshall issued the warrant, as well as warrants for some associated vehicles.

[12] Constable Teixeira’s ITO picked up the story. The police seized items from Unit 122 that included debt lists and vacuum sealers that can be used in drug packaging. The other safe was opened. The money and the suspected oxycodone pills were counted. There was about $1.2 million in Canadian currency and 818 pills. The debt lists referred to “10 birds at 39,500”, “5 birds 40,000” and “1000 Ox, 42,000$”. Constable Teixeira, who is also an experienced drug investigator, indicated from his experience that a “bird” is a term that refers to a kilogram of cocaine and “ox” is a short form for oxycodone. He stated that he was aware that the price of a kilogram of cocaine is between $36,000 and $45,000 depending on supply and demand. The police seized paraphernalia, including a money counter, from Unit 1222. They also seized a small quantity of crack cocaine.

[13] Constable Teixeira indicated in the ITO that it was common for drug distributors to maintain two stash houses: one for money, and one for the drugs. It was his view that Unit 1222 was a stash house for money. There was nothing to indicate that anyone actually lived there: there was no bed, very little clothing, and some junk food.

[14] The police seized a set of keys for Unit 1222. There were also keys for a separate unit. The police also seized documents from the unit. One of the documents was signed by Daniel Vidakovic and co-signed by Nada Alibegovic. Other documents indicated at Nada Alibegovic owned Unit 1225 in the same building – 65 Legion Road. Constable Teixeira conducted computer checks and determined that Nada Alibegovic was the mother of Sani Alibegovic. Police had charged Mr. Alibegovic with numerous gun and drug offences in 2006.

[15] Constable Teixeira then assigned a police officer to check if anyone was at home at Unit 1225. An officer knocked on the door. Sani Alibegovic answered. The officer observed a money counter in the apartment. He arrested Mr. Alibegovic. The police searched him incidental to arrest. He possessed keys to Unit 1222 and to a high end safe, which Constable Teixeira believed was a key to one or both of the safes seized by the police. Mr. Alibegovic also possessed a key to a BMW. An officer went to the parking garage. He used the remote access button on the key to locate the vehicle. The vehicle was registered to a third party. The officer checked the vehicle and found two duffel bags stuffed with cash.

[16] On the same day, July 30, a confidential informant contacted Constable Teixeira. The confidential informant provided information to Constable Teixeira. Constable Teixeira set out the information in his ITO. The ITO was sealed. The Crown subsequently provided a redacted ITO to Mr. Trought’s counsel. The confidential informant provided the following information, as set out in the redacted ITO and the judicial summary:

• An unknown male was parked in the vicinity of 165 Legion Road;

• The confidential informant described the unknown male was black, athletic, and slender;

• The unknown male was driving a black Ford Fusion with Ontario licence DLJX 572;

• The unknown male met with a white male;

• The confidential informant described the white male as 6’1”, 150-160, with short brown hair;

• The unknown driver of the Ford Fusion showed the white male a large quantity of cocaine in kilo bricks;

• While that was happening several police cruisers showed up;

• The unknown male drove to the area of Harrison and Everson Drive in Toronto. According to the confidential informant that is where the unknown driver of the Ford Fusion has his stash house;

• The confidential informant indicated that the vehicle is a rental vehicle that cannot be traced back to this unknown male;

[17] According to the redacted material, the unknown white male who saw the bricks of cocaine is believed to be associated with suites 1222 and 1225 at 165 Legion Road. After reviewing the un-redacted material, I agree that there is a basis for that belief.

[18] The judicial summary stated that the information redacted from the ITO provided further details about the observations made by the confidential informant.

[19] Constable Teixeira provided information about the confidential informant. Much of that information was also redacted. He provided the following information about the confidential informant, as set out in the redacted ITO and the judicial summary:

• The confidential informant is a carded informant, meaning that he or she is registered with the Toronto Police Service (the ITO provided the confidential informant’s Toronto Police Service number, but the number itself was redacted);

• The confidential informant is well versed in organized crime, and, in particular, drug trafficking;

• The confidential informant has provided information to the police in the past;

• The confidential informant is entrenched in the drug lifestyle, raising questions about his or her moral or ethical character;

• The confidential informant has expressed concerns for his or her safety.

[20] The judicial summary further clarified that the police informed the confidential informant that he or she would receive no consideration unless the information proved fruitful.

[21] A police officer was dispatched to conduct surveillance in the area of Harrison and Everson Drive. The officer located the vehicle described by the confidential informant. Computer checks revealed that it was a rental vehicle. Mr. Trought’s name was not associated with the vehicle. The police took a surveillance photograph of the driver. A police officer showed the photograph to a security officer at 80 Harrison Gardens Boulevard. The security officer identified the driver as a resident of 80 Harrison Gardens Boulevard.

[22] The security officer also told the police that this unknown male has frequent visitors. The visitors remain in the lobby or in front of the condo waiting for him. He indicated that the unknown male had a key fob. He identified the unknown male as a resident of Suite 2018.

[23] The transcripts of the preliminary inquiry were filed before me on the voir dire. Testimony from the officers indicates that they were sceptical that the security officer was correct that the unknown driver of the Ford Fusion resided in Suite 2018.

[24] Mr. Trought was arrested while driving the Ford Fusion a short time later on July 30. He was found in possession of a key fob for 80 Harrison Gardens. The police swiped the fob and learned that it was for Suite 520, not Suite 2018. They amended the request accordingly. A warrant to search was issued for Suite 520 and the Ford Fusion.

[25] The police did not find drugs in the Ford Fusion. They seized several manila envelopes and a plastic bag containing powder cocaine. The police seized a total of 2520 grams of cocaine. The police also seized 7 grams of crack cocaine. The police also seized what appeared to be a debt list and a money counter.

[26] The powder cocaine was valued in the range of $113,000-$126,000 if purchased as a whole; it was valued at approximately $135,000 to $162,000 if sold at the ounce level; and at approximately $252,000 to $302,000 if sold at the street level in quantities of one gram each.

[27] The seven grams of crack cocaine was valued in the range of $350 to $400 if purchased as a whole; at approximately $1400 if sold at street level in quantities of 0.1 grams at $20 each.

[28] The defence conceded that given the quantity, value, and surrounding paraphernalia the cocaine was possessed for the purpose of trafficking. As I turn to next, Mr. Trought admitted as much.

THE DEFENCE EVIDENCE

[29] Mr. Trought testified that he was dating Keeli Stith during June 2013. Ms. Stith lived at 165 Legion Road in Toronto. On the evening of July 29, 2013 he went to Ms. Stith’s apartment. He went over there at about 8:00 pm or 8:30 pm. In the early morning hours of July 30 he heard a loud bang. He later heard a knock on the door. He answered it. There was a police officer present. He told the officer about the loud bang. He did not provide his name to the police. He left about 30-45 minutes later. When he left there was a large police presence. He then walked to his car, the Ford Fusion. He was parked on the road near the building. The police did not stop him from leaving. He went right to his place on Harrison Road.

[30] Mr. Trought said that did not ever have kilos of cocaine his car at any time around 165 Legion Road.

[31] Ms. Stith testified that she began a relationship with Mr. Trought in June 2013. During the evening of July 28 2013 – Ms. Stith wasn’t too sure of the dates – Mr. Trought visited with her at her apartment at 165 Legion Road. At some point after 1:40 am she was in the shower when she heard a knock at the door. Mr. Trought answered the door. Ms. Stith could hear two people identify themselves as police officers. Ms. Stith told the officers that she lived there. The officers asked if they had heard a loud bang. She stated that she had.

[32] Ms. Stith further testified that Mr. Trought left about 2 or 3 am. He came back in the afternoon and brought her some food. She went down to the lobby to let him in. A man was sitting in the reception area. She felt that he looked “cop-ish”. She believed that he was an undercover police officer. She stated that it was just her personal instinct.

ANALYSIS

[33] Mr. Menzie’s central point is simply that the informant didn’t exist; or if he or she did exist, the information provided by the informant was so ridiculous that it cannot be believed. The informant’s information was not true and simply absurd on its face. He also argues that references in the ITO to the investigation of the events at 165 Legion Road should be excised as irrelevant and prejudicial.

[34] As I set out, I respectfully disagree with each of Mr. Menzie’s arguments. Since the warrant is presumptively valid, the onus is on Mr. Trought to show that his Charter rights have been breached.

Was the informant information fabricated?

[35] Mr. Menzies says that either the police fabricated the existence of the confidential informant. Alternatively, if the confidential informant existed, then the police fabricated the information. He makes three points:

• First, the idea that Mr. Trought flashed bricks of cocaine to Sani Alibegovic is absurd on its face, especially when there were police around. No intelligent drug dealer would take that risk.

• Second, the informant must have been lying – or the police must have been fabricating – because Mr. Trought testified truthfully and convincingly that the “flashing” of the bricks of cocaine never happened.

• Third, the police must have been aware that Mr. Trought was present in the building when the break-in happened at Legion Road. He argues that he spent the evening with Ms. Stith and was therefore aware of the police. He argues that the police knew he was there, saw Mr. Trought leave at 4 am, and therefore used that as the basis for the affidavit. He says it is not beyond the realm of possibility that the police saw the Ford Fusion there, ran the licence plate, and that was how the police tied Mr. Trought to Legion Road. He says it is absurd to believe that the police weren’t aware of Mr. Trought’s presence there on the night of the break in. They must have seen him in the lobby as he left early in the morning (as confirmed by Ms. Stith)

[36] I reject all of these points. I will deal with each in turn.

[37] Turning to the first point, I see nothing absurd on its face that a dealer of cocaine at the kilogram level – with a kilogram costing in the range of $40,000 – would show the product to a potential customer. I think that it is obvious that drug dealing is an illegal business where the level of trust between participants is low and the potential for rip-off (and violence) is high. There was no expert evidence one way or the other indicating that drug dealers at the kilogram level show their product to potential buyers. I think, however, that it is important to note some of what Constable Teixeira actually wrote in paragraph 30 of the ITO:

b. The CHS advised this male parked [REDACTED] and met a male described as male white, 6’1”, 150-160 with short brown hair attended the vehicle.

c. The unknown driver of the Black Ford Fusion [REDACTED] showed the male white a large quantity of cocaine in kilo bricks.

d. The CHS advised that while this was happening several police cruisers showed up and the male black [REDACTED] leaving it there. The male white [REDACTED].

[38] Although I am aware of the redacted portions of the ITO, even without referring to them I do not see what is absurd about this scenario. The confidential informant did not suggest that the dealer showed the bricks of cocaine while the police were present. Rather, the police showed up while that was happening. I respectfully take the opposite view from Mr. Menzies: what would be absurd would be a drug dealer purchasing kilograms of cocaine from another drug dealer without actually viewing the product beforehand, or having a sample, or demonstrating bona fides in some way.

[39] In any event, even if I were to find that the police fabricated the existence of the confidential informant, or the information provided by the confidential informant, the existence of fraud or material non-disclosure is not necessarily fatal. The question is whether, after the review by the judge, there continues to be a basis for the issuance of the warrant: Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at para. 56; R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097. The question of fraud or material non-disclosure is certainly relevant. It is not determinative: Bisson at para. 1. That said, I do not accept that the police concocted the informant.

[40] Turning to the second point: I simply do not accept that Mr. Trought is a credible witness. Although a self-confessed drug dealer, he took pains to minimize his involvement in the business. Further, the Crown’s evidence discloses a very comprehensive plan on Mr. Trought’s part to be anonymous and untraceable – and his explanations are too convenient to be mere coincidence. He is untraceable as the driver of the Ford Fusion. He is also not a signatory to the lease of 80 Harrison Gardens Boulevard. He does not have credit cards in his name because, he says, of poor credit. He uses someone else’s key fob for the Harrison Gardens address. Everything is in someone else’s name. That is classic behaviour for a commercial dealer of illegal drugs – which Mr. Trought admits to being.

[41] For example, I do not accept Mr. Trought’s explanation that renting a Ford Fusion through a front person for $800/month was a better deal than he could have obtained elsewhere due to his bad credit. If that was true, then why couldn’t his front person have leased a car for him at a much better rate?

[42] Mr. Trought admitted to being a drug dealer. He testified that much of the cocaine seized by the police actually belonged to a friend. He said that about 500 grams were his. Although it is not strictly necessary for me to make a finding for the purposes of this motion I do not believe him. He refused to accept that the notebook found in Harrison Gardens is a debt list. That is not credible. The notebook is quite obviously a debt list. Detective Margetson was qualified to give expert evidence on drug trafficking and drug terminology. He testified that that the notebook clearly refers to kilos of cocaine. It refers to prices and street names for ounces and kilograms. I accept the expert evidence. Even without expert evidence it seems fairly obvious, when considered that it is found in proximity to a very significant amount of drugs. Mr. Trought’s innocent explanation that the notebook referred to gym promotions is simply not worthy of belief.

[43] The evidence of the security officer at 80 Harrison Gardens is also significant. He told the police that Mr. Trought received frequent visitors. Those visitors remained in the lobby or in front of the condo waiting for him. Mr. Trought testified that cars parked in front of his condo frequently received parking tickets. He visited in the lobby with his friends so that they could keep an eye on their cars. I found this evidence to be contrived. What were all the other residents of the condo doing with their visitors? Was nobody else having visitors to their condos? Surely the security officer would not have found Mr. Trought’s behaviour noticeable if all the residents of the building had the same issue with their guests. Given that Mr. Trought already admitted to being a drug dealer (albeit with a limited clientele) I find it is much more likely that he was meeting customers.

[44] I do not accept the argument that I should find Mr. Trought credible because he admitted that he is a drug dealer. He could hardly do otherwise. His apartment was full of drugs. His attempts to minimize his involvement and his testimony that the obvious debt list was something other than a debt list did not help him.

[45] What about Ms. Stith? I have serious difficulties believing her evidence. She is in a relationship with Mr. Trought. She clearly wants to protect him. The similarities between their stories smack of collusion and fabrication – her reference to what she thought was an undercover police officer looking carefully at Mr. Trought was designed to reinforce the speculation that the police knew he was at 165 Legion Road that night. Even if she is not lying, she appears to be confused about the sequence of events and the dates. Furthermore, although she testified that Mr. Trought did not leave her apartment that night, it is entirely possible that he left for the short period of time and she forgot about it – after all, this was early in the morning. Either that, or she lied about it. It would have taken only a short period of time for him to have shown the bricks of cocaine and then come back to the apartment.

[46] Turning to the third point, there is simply no evidence that the police were aware of Mr. Trought’s presence at 165 Legion Road on the night of the break-in. To find otherwise would require pure speculation. On his own evidence (and Ms. Stith’s evidence) Mr. Trought did not give his name to the two officers who knocked on Ms. Stith’s door. There is no evidence that the police ran the licence plate of the Ford Fusion, which was supposedly parked in the area. When the police did run the plate of the Ford Fusion, computer checks did not associate the vehicle with Mr. Trought. It associated the vehicle with a rental company. That is consistent with Mr. Trought’s evidence that he rented the vehicle in someone else’s name. The police obviously could not have become aware of Mr. Trought’s presence even if they had seen the Ford Fusion and randomly checked the plates on their computer system.

Evaluating the Informant’s “tip”:

[47] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 Wilson J. set out three questions that must be considered in evaluating a “tip” from a confidential informant at para. 53:

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? Second, 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.

[48] I respectfully adopt the approach set out by MacDonnell J. in R. v. Choi, 2013 ONSC 291 at para. 28:

As Justice Wilson made clear, the three concerns she mentioned are not separate tests. It may be useful to consider the evidence pertaining to each of them, however, before addressing whether the 'totality of the circumstances' raised a reasonable probability that drugs would be found in the premises sought to be searched.

[49] Sopinka J. further summarized the approach to informant information at para. 68 of Garofoli:

(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…

Was the information compelling?

[50] In my opinion there was evidence in Constable Teixeira’s ITO that was compelling. The ITO told a coherent story. The police receive a tip from a confidential informant about a drug dealer “flashing” bricks of cocaine to a potential purchaser. The tip includes the important fact that the deal had been aborted when the police arrived in the area for something unrelated. The description of the unknown dealer, the location of his stash house, and the mention of the untraceable car all provide compelling information. The activity described by the confidential informant conforms to classic commercial drug dealer behaviour: Choi at para. 32.

Was the information credible?

[51] The confidential informant was a “carded” or registered informant with the Toronto Police Service. The confidential informant had previously provided information to the Toronto Police. The police had informed the confidential informant that he or she would not receive any consideration unless the information had proven fruitful. The confidential informant was also described in the ITO as being “well versed in organized crime and drug trafficking”. As Constable Teixeira wrote, the confidential informant’s immersion in organized crime was both a positive and a negative aspect of his or her reliability: on the one hand the informant clearly knew a great deal about drug trafficking and the participants in the illegal drug business; on the other hand, this made him or her ethically suspect. The fact that the confidential informant was not anonymous was important: there was a track record with the police: Choi at para. 34; R. v. Nguyen, 2015 ONCA 753 at paras. 11-12.

Was the information corroborated?

[52] The police need only corroborate material aspects of the information provided by the confidential informant. They do not need to confirm actual criminality. Corroboration of well-known innocent material facts will not assist them: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451.

[53] In this case, the police were able to corroborate important facts. The confidential informant told police that the unknown male was driving a black Ford Fusion. He provided a specific licence plate. The confidential informant stated that the Ford Fusion was a rental vehicle that could not be traced to the unknown male. When the police ran computer checks on the plate they found that Ministry of Transportation records showed that the plates were registered to a car rental agency.

[54] Mr. Trought testified that as the actual driver of the rental vehicle, he had to sign a document showing he would be using it. Mr. Menzies argues that the police investigation did not go far enough. If the police had only visited he rental car agency, they would have found Mr. Trought’s name – thus showing that the police corroboration was worthless.

[55] I disagree. I leave aside the fact that Mr. Trought’s evidence is highly suspect. The police are not required to take every possible investigative step that could be taken: R. v. Yorke (1992), 1992 CanLII 2521 (NS CA), 77 C.C.C. (3d) 529 (N.S.C.A.). That would be an impossible task. If that were the case, the police would never be able to obtain a search warrant. It must be remembered that at the investigative stage the police are required to take reasonable investigative steps. They are entitled to a certain amount of deference in determining how they allocate their limited investigative resources. In this case, it was reasonable for the police to run computer checks in the midst of a fast-moving investigation with a suspect under surveillance. The computer checks revealed that the Ford Fusion was registered to a car rental agency. That was enough to corroborate the informant for the purposes of a search warrant. A visit to the car rental agency to gather documents that might be necessary for court is something that could have been done after the execution of the warrants and the arrest of suspects, if arrests were made. The following statement of Blair J.A. in R. v. Nguyen, 2011 ONCA 465 illustrates the point at para. 57:

That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application…

[56] The confidential informant also told police that the unknown male kept his stash house at Harrison and Everson Drive in Toronto. The police located the Ford Fusion in front of 80 Harrison Gardens Boulevard.

[57] Finally, with regard to Sani Alibegoivic, the ITO read at para. 33:

On today’s date police arrested Sani ALICBEGOVIC 1983.07.27 in relation to these seizures. ALIBEGOVIC matches the description of the male white [REDACTED] viewed the cocaine.

[58] I have little difficulty in finding that specific, material, and detailed information provided by the confidential informant was corroborated by the police. There must be few cases with stronger corroboration.

[59] Interestingly, the confidential informant’s information is corroborated most strongly by Mr. Trought himself – although Mr. Trought’s evidence was not before the issuing justice, obviously. Mr. Trought and the confidential informant both agree that he was present at 165 Legion Road at the time the police showed up to investigate the break-in. They differ, of course, on what Mr. Trought was doing there but not on the essential fact of his presence. As a point of amplification (albeit by the defence) it is yet another basis upon which to reject the assertion that the confidential informant was fabricated or his or her information was fabricated.

Do the totality of the circumstances provide a basis upon which the warrant could have been issued?

[60] In totality, I find that the ITO meets the test. The information is sufficient compelling, credible, and corroborated. Any weakness in the credibility of the informant is made up for by the strong corroboration. The details of the licence plate, for example, are so specific that they lend a high degree of comfort that there was a basis for the issuing judge to have issued the warrant.

Should Appendix D to the ITO be excised?

[61] Appendix D is simply the ITO for the Legion Road apartments and associated vehicles. Mr. Menzies argues that it should be completely as it is misleading, irrelevant, and prejudicial.

[62] I cannot agree. Appendix “D” permitted the issuing judge to put the information provided by the confidential informant in context. The redacted ITO suggests that a significant drug dealer lived and worked at 65 Legion Road. Appendix “D” also sets out the context for the aborted meeting: the police arrived. It is, therefore, quite obviously relevant. There is no evidence before me to show that anything in it is misleading. As for being prejudicial, it is true that Appendix “D” indicates that the unknown driver of the Ford Fusion (Mr. Trought) does business with drug dealers at a very high level. That may be prejudicial, but it is highly probative. There is no reason to excise Appendix D.

Did the arresting officers have reasonable grounds to arrest Mr. Trought?

[63] Mr. Menzies finally argues that the arresting officers did not have reasonable and probable grounds to arrest Mr. Trought. This was because they were simply directed by other officers to make the arrest. Mr. Menzies argues that the arresting officers could not arrest Mr. Trought unless they had their own individualized grounds.

[64] I must disagree. A police officer can, in good faith, rely on the direction of another officer to make an arrest. A police officer is entitled to rely on the objective and subjective belief of another officer and need not conduct his or her own investigation: Debot at para. 50. The policy reason for this rule is obvious. If a police officer had to conduct a separate investigation every time her she was directed to do something by a fellow officer (or a superior officer) then enormous amounts of police resources would be used up investigating and re-investigating the same things.

DISPOSITION

[65] The application to exclude the evidence is dismissed

R.F. Goldstein J.

Released: December 16, 2016