Court File and Parties

COURT FILE NO.: CR-15-90000612-0000 DATE: 2017-03-17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ariel Elbaz, for the Crown Respondent

- and -

SHAMAR COLE David Quayat, for the Defendant Defendant/Applicant

HEARD: November 29-December 1, 2016, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Charter, s. 8

Introduction

[1] Shamar Cole was charged with possession of cocaine for the purposes of trafficking.

[2] Based on confidential information provided by a confidential source (“CS”), combined with the results of limited police surveillance, members of the Toronto Police Service drug squad obtained three search warrants: one to search the premises at Unit 215, 40 Tuxedo Court in Toronto associated with the defendant Cole, a second to search a 2008 blue Mercedes-Benz sedan and a third to search a 2004 white Nissan Maxima sedan, both of which were registered to Cole as the owner. A single Information to Obtain (“ITO”) was sworn relative to all three locations to be searched.

[3] Cole was apprehended at the Tuxedo Court address as that warrant was executed. A search of that residence yielded 2.45g of crack cocaine in plain view on top of a refrigerator in a bedroom at that address, as well as $4,467 in the same room. Nothing was located in the white Nissan Maxima, but in their search of the blue Mercedes-Benz vehicle, police found a further 272.88g of crack cocaine in the trunk located under the flap where the spare tire would be stored. The larger quantity of crack cocaine seized from the Mercedes-Benz vehicle is the evidence that gave rise to the possession of cocaine for the purposes of trafficking charge against Cole.

[4] Cole did not challenge either of the warrants for the Tuxedo Court residence or the white Nissan Maxima. On this application, he challenged the search of the blue Mercedes-Benz vehicle claiming it violated his s. 8 Charter rights. He asked this court to exclude the 272.88g of crack cocaine seized from that location. He challenged that seizure on the basis that a Justice of the Peace, acting judicially and presented with the contents of the ITO prepared by P.C. Dennis Ye as it related to the Mercedes-Benz vehicle, could not have issued that warrant under the test established by the Supreme Court in R. v. Debot. Because the affiant relied on information obtained from a confidential informant, this claim gave rise to a voir dire to determine the admissibility of that evidence following the procedures set out in step 6 of the decision of the Supreme Court of Canada in R. v. Garofoli.

[5] Crown counsel accepted that a step 6 Garofoli review would be required because the content of the ITO, as redacted to protect confidential informant privilege, lacked reasonable and probable grounds to sustain that particular warrant for both the apartment and the applicant’s blue Mercedes-Benz vehicle.

[6] Insofar as Crown counsel conceded the redacted ITO was insufficient to meet that test, she prepared a draft judicial summary of the redacted portions of the ITO for my review and approval, consistent with the guidance provided by our Court of Appeal in the leading decision of R. v. Crevier.

[7] I reviewed the original redacted ITO, the slightly less redacted ITO to which the Crown agreed following discussions with defence counsel, and the form of that judicial summary as prepared by the Crown. I also reviewed the unredacted ITO to enable me to assess the sufficiency of the draft judicial summary. Subject to two relatively minor wording changes, the purpose of which was to assist the defence to understand the nature of information in the ITO relative to the history and credibility of the CS and with which the Crown agreed, I approved that slightly amended summary as appropriate for the argument of the step 6 Garofoli application. I note as well that defence counsel initially sought leave to cross-examine the ITO affiant on several discrete points, and that he initially challenged that the warrants obtained were telewarrants, but he later abandoned both of these arguments.

[8] At the conclusion of the Charter application, I gave my ruling on the application brought by the accused with a brief summary of my reasons. While there was no question that the police had reasonable and probable grounds to search the Tuxedo Court residence, I found that the police did not have reasonable and probable grounds based on the content of the ITO to search the blue Mercedes-Benz vehicle registered to Cole. As such, I found that his s. 8 Charter rights were violated and that a Justice of the Peace could not have issued the warrant to search that vehicle. Nevertheless, applying the analytical methodology mandated in R. v. Grant on whether the evidence ought to be admitted or excluded under s. 24(2) of the Charter, I ruled that the evidence should not be excluded and would be admissible on Cole’s trial. These are my formal reasons for reaching that conclusion.

Issues on this application

[9] A warrant to search a vehicle may issue pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 where the police establish to the satisfaction of a justice (on the basis of a sworn statement) that there are reasonable grounds to believe that there will be a controlled substance or evidence of the offence present in the place or places sought to be searched.

[10] The police obtained the evidence against this applicant on the basis of search warrants applied for and issued by a Justice of the Peace. Those warrants are presumptively valid, and so the applicant bears the burden of proving that those warrants could not have issued. The process requires an assessment of the ITO as a whole, using a practical, common sense and non-technical approach, without parsing its individual elements. R. v. Sadikov, 2010 ONSC 5884, at para. 24; R v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 57. The correct question is “whether the respondent has established that there was no basis for its authorization.” R v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45.

[11] As noted, on this application, Cole asks this court to exclude only the evidence seized from his Mercedes-Benz vehicle. The applicant contends the information presented to the issuing justice relating to the probability of evidence being found within that vehicle did not meet the threshold of reasonable and probable grounds required to justify the issuance of a warrant.

[12] My role as a reviewing judge on an application for a previously authorized search warrant is very limited. I do not have the authority to conduct a de novo hearing into the sufficiency of the warrant, and the standard of review is not the existence of a prima facie case or even a balance of probabilities. The test is whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. As the Supreme Court affirmed in R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40:

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.

[13] I am not permitted to substitute my view for that of the issuing justice, and it is not a determination of whether I would have issued the warrant, given the presentation of the same evidential record. Rather, the question is whether the issuing justice could have issued the warrant to search that vehicle, given the record that was before him or her, as amplified or excised on review. R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 84-87.

[14] In this case, since the information said to support the issuance of the warrant relies extensively on a confidential informant source, Debot requires the issuing justice to consider, on the totality of the circumstances, the extent to which that information is compelling, credible and corroborated by other evidence, in order to determine whether the statutory pre-requisites are met. In considering that totality of circumstances, the informant’s sources, whether personal or third party, and the detail of the information are to be considered. The reviewing judge is also required to consider indicia of reliability of the confidential informant on the basis of their past performance, or by confirmation from other investigative sources. Garofoli, supra, at para 85. But Debot also makes plain that any frailty relative to the reliability of the confidential source, and thus their credibility, may be overcome by the strength of the information in terms of it being compelling. This includes, for example, extensive personal detail that could only have come from a person who knew from first-hand information what they reported.

Analysis

[15] I find the information provided to the police by the CS in this case was specific and detailed. While there was no extensive corroboration of any of his evidence obtained by the limited police surveillance that was conducted, the information provided by the CS was credible, and the CS had provided confidential information to the police on several other occasions that was proven to be reliable. The CS in this case was hardly an untested informant.

[16] The information received from the CS contained many indicia of reliability, although I acknowledge that the redaction from the ITO of the very specific detail provided prevents the extent of that detail from being known to the defence. Nevertheless, it was very detailed and was clearly based on first-hand information. The CS provided a complete description of Cole, identified the types of drugs that he sold, knew the prices of each drug, had had occasion to see Cole in possession of cocaine, knew the cars that Cole drove, and most importantly relative to the warrant being challenged, stated that Cole dealt drugs from his car. I find that the nature of the information provided by the CS demonstrated that the reviewing justice did not need to be concerned that the information was a product of rumor or innuendo. It was information derived from direct first-hand experience. As such, the information falls squarely within the kind of information described in R. v. Amare, 2014 ONSC 4119, at para. 84 as meeting the “compelling” standard, at least with respect to the apartment.

[17] Again, as it relates to the apartment, under the balancing exercise contemplated in the Supreme Court of Canada's governing decision in Debot, I would have found the information compelling, corroborated and credible, such that the Justice of the Peace acting judicially could have issued the warrant for the Tuxedo Court residence. The compelling nature of the information as provided by the CS, plainly clothed that information with sufficient credibility to meet the test of credibility, even apart from the additional fact that the CS was a reliable and tested informant.

[18] The problem in this case, however, is not the sufficiency of that information on its own; it is instead that the information obtained from the CS relates almost exclusively to the Tuxedo Court residence, but is far less fulsome and materially less detailed or focused relative to the Mercedes-Benz vehicle in which the drugs were located. The only separate evidence in the ITO relative to the vehicle was the CS’s statement that the accused dealt drugs from the vehicles and the fact that they were registered to the accused’s name. The significant compelling and credible information relative to the apartment lends some enhanced weight to these limited facts. Apart from this transference by association, however, there is little more.

[19] In fact, there is no statement by the ITO affiant of what his reasonable and probable grounds were to believe that searches of the vehicles might afford evidence of the commission of offences. In my view this is a serious omission, even if a technical failure. The officer’s job is to state and swear the foundation for his belief. In R. v. Rocha, 2012 ONCA 707, 292 C.C.C. (3d) 325, the court faced a similar circumstance, albeit in more serious and disconcerting circumstances. In that case, the Court of Appeal found that the warrant could properly issue for the restaurant location, which was one location to be searched, because of the detailed and compelling information contained in the ITO to support a belief as to reasonable and probable grounds relative to that location. However, the Court of Appeal concluded that the warrant issued to search the residence could not stand because it was based on bald and conclusory statements that there were drugs to be found in the house. The credibility of the informant relative to the restaurant did not extend to the question of whether there were drugs in the residence. In this case, the credibility of the informant carries some weight, but in my view, the failure to actually state a ground for the belief relative to the car is a critical flaw. The affiant ought to plainly state the reasonable and probable grounds for believing a search will yield evidence. A Justice of the Peace should not search through the ITO to see if he or she can infer the presence of such grounds.

[20] As such, while I have found that the information provided by the CS meets the test in Debot as it relates to the apartment, the exceptionally limited information relating to the vehicle and the failure of the affiant of the ITO to actually state that he had reasonable and probable grounds to search the vehicle, much less what they were, satisfies me that the Justice of the Peace, acting judicially, could not have issued the warrant as she did relative to the search of Cole’s blue Mercedes-Benz vehicle. As such, I find that the search of that vehicle was a warrantless search that violated Cole’s s. 8 Charter rights.

Section 24(2) Analysis

[21] The admissibility of evidence under s. 24(2) of the Charter is determined under the three-step analytical methodology described in Grant. Courts are required to consider all the circumstances surrounding evidence obtained in violation of the accused’s Charter rights.

[22] The first step requires an assessment of the seriousness of the Charter-infringing conduct of the state. Our courts will increasingly need to disassociate the justice system from severe or deliberate state conduct that leads to the violation of Charter rights. The focus is to preserve public confidence in the rule of law and the processes that are the foundation of our legal system. As such, evidence obtained through inadvertent or minor Charter violations will likely favour admissibility. Evidence obtained through wilful or reckless state disregard of Charter rights will favour exclusion. However, where police authorities have acted in good faith, there will be less need for the court to disassociate itself from the impugned police conduct.

[23] The second step requires consideration of the effect of the breach on the accused’s Charter protected interests, and the extent to which the conduct undermines those interests. The impact may range from fleeting and technical to profoundly intrusive. As the impact of the breach on the protected interests of the accused increases in its seriousness, there will be greater risk that admission of the evidence will bring the administration of justice into disrepute in the eyes of the ordinary citizens of this land.

[24] Finally, the third step in Grant acknowledges that our society has a collective interest in ensuring that lawbreakers are tried and dealt with according to law. Our society generally expects that criminal allegations will be considered and adjudicated on their merits, so the third line of inquiry considers whether the truth-seeking goal of a trial is better served by the admissibility or the exclusion of the impugned evidence. Judges must consider not only the negative impact that may be caused to citizens’ confidence in the administration of justice by admitting the evidence, but also whether the administration of justice would fall into disrepute if the evidence were not to be admitted. The interest of the public in truth-seeking remains a relevant consideration in this inquiry.

[25] The importance of the evidence to the prosecution’s case is a factor that must be considered in this process. The exclusion of highly reliable evidence may impact more negatively on the reputation of the administration of justice where the exclusion of the evidence “effectively guts the prosecution” (Grant, supra, at para. 83). The seriousness of the offence is also a valid consideration. Failure to effectively prosecute a serious charge due to the exclusion of constitutionally tainted evidence may have a more important impact on the long term reputation of the criminal justice system.

[26] As the Supreme Court acknowledged in para. 86 of Grant, trial judges must weigh the various factors and balance them, but no overarching rule governs how the balance is to be struck and the goal is not mathematical precision. Nevertheless, I am mindful of the practical guidance Doherty J.A. offers in R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 63:

[27] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 (Ont. C.A.), at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140. (Emphasis added)

[28] As I have previously indicated, in my view, the decision in Rocha is central to this case, and especially this Charter analysis. While the circumstances of Rocha are ostensibly similar to the circumstances of this case, certain important features of this case distinguish it from Rocha and lead to a different result.

[29] Step one of the analysis in Grant requires an assessment of the seriousness of the Charter-offending conduct. In Rocha, Rosenberg J.A. observed that the approach that should be taken by me as the reviewing judge is to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end: see R. v. Morelli, [2010] 1 S.C.R. No. 253, at paras. 99-103.

[30] In Rocha, there were three distinct aspects of the Charter breach related to the warrant issued to search the accused’s house and the ITO provided to the Justice of the Peace in support of that warrant. First, the affiant in Rocha failed to disclose the record of the accused to the Justice of the Peace. That is a factor that is not present here. Second, there were misleading statements in the ITO that indicated that the police had independently confirmed the information from the informant, when they had not. Here, the police independently confirmed ownership of the vehicle, but did nothing else relating to the vehicles. The only potentially misleading statement in this ITO related to P.C. Parker's surveillance of the apartment building, but that does not relate in any way to the validity of the warrant that was issued to search the vehicles registered to the accused. There is nothing misleading in the ITO, in my view, that relates to the request for the warrants for the vehicles themselves.

[31] Rosenberg J.A. speaks to the third element at para. 36 of his reasons. That problem, like here, was that the affiant of the ITO never swore as to the basis of the belief for his reasonable and probable grounds that drugs would be found in the residence in that case. Justice Rosenberg regarded that as carelessness, but also regarded it as “symptomatic of the lack of care that is demonstrated in other important aspects of the ITO.”

[32] Here as well, the affiant of the ITO never swore as to the basis of his belief that there were reasonable and probable grounds that drugs would be found in the vehicle, but there are no other examples of lack of care in the drafting of the ITO relative to the Mercedes-Benz vehicle, or anything else. This is not at all, in my view, like the problems that Fish J. identified in Morelli and that could undermine the warrant in its entirety.

[33] Moreover, the affiant stated that he had corroborated, to the best of his ability, the information that he provided to the Justice of the Peace and he believed all of the information from the confidential source to be true, credible, and reliable. He specifically stated a belief in the time extension paragraph, positioned later in the ITO, that he believed that the defendant dealt drugs out of his dwelling house and motor vehicle, even if that belief is not corroborated beyond the registry of the cars and the credibility of the confidential source as an informant. However, he never embellished or exaggerated that drugs will be found in the vehicle.

[34] Crown counsel argues that even if the affiant failed to affirmatively state reasonable and probable grounds for the vehicle search, all of the required information was actually there in front of the Justice of the Peace. At the end of the day, the Justice of the Peace appears to have concluded that she could connect the dots and regard the statement as the affiant's statement of belief, even if there was no basis beyond the information of the confidential informant and the registration of the vehicles to Cole as the owner.

[35] Rosenberg J.A. addresses this point at para. 28 of Rocha:

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrants generally, as I explained below, tells in favour of admitting the evidence. In this case, the police submitted the fruits of their investigation to a justice of the peace who granted the warrants. I have held that the warrant was properly granted in relation to the restaurant. The warrant should not have been granted in relation to the house, but it must be remembered that an independent judicial officer did authorize the search.

[36] On the first step in Grant, I regard this as a serious technical breach, but it is not a serious substantive breach as in Rocha. Nothing indicated an absence of good faith on the part of the affiant. Failing to recognize specifically that the strong statement of reasonable grounds related to the apartment does not by itself amount to a statement of reasonable belief of a credibly based probability that evidence will be found relative to the Mercedes-Benz vehicle was a careless, technical breach that an officer of P.C. Ye’s experience should not have made. He should have completed his work by stating the grounds for his belief that the vehicles should be searched. He could have done that simply by referring to the strength of the ITO as it relates to the apartment, and noting that the strength of that information combined with Cole’s ownership of the vehicles and the CS’s statement that the accused deals drugs out of his vehicle was what informed his belief as to the presence of reasonable and probable grounds to search the Mercedes-Benz vehicle, but he did not do that. This is not conduct of such an egregious nature that it would seriously favour exclusion of the evidence. At its highest, it only mildly favours exclusion.

[37] Turning then to the second step in Grant, again I return to Rocha. In assessing the seriousness of the breach in Rocha, Justice Rosenberg emphasized the fact that the location searched was a dwelling house, which attracts the highest level of privacy interest. Here, the location searched was a vehicle. R. v. Belnavis, [1997] 3 S.C.R. 341 and R. v. Caslake, [1998] 1 S.C.R. 51 certainly establish the existence of a privacy interest in a vehicle, but is it not to the same level of privacy interest as a “man in his castle.”

[38] Counsel for the defence argues that R. v. Dunkley, 2016 ONCA 597, 340 C.C.C. (3d) 530, at para. 58 and its reference to R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102, at paras. 47-48 establishes that even if there is a reduced expectation of privacy in a vehicle, that does not mean that unjustified searches are permissible. As Iacobucci J. states in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56, the impact of even a minimally intrusive search “must be weighed against the absence of any reasonable basis for justification.”

[39] I would not suggest that unjustified searches are to be permitted, but this is not a case where there was an absence of justification. First of all, unlike in Harflett and in Mann, there was a reasonable basis to justify the intrusion in this case, having regard to the entirety of the facts that were known to police. The CS had specifically told them that Cole dealt drugs out of his car. While I have found that the warrant could not issue because of its important technical deficiency, the search was nevertheless justified and there were facts present to support it. Regardless of that distinction, the question of the effect of the breach on the Charter protected privacy interest of the accused does favour exclusion, but in my view it is only to a very limited degree, and it does not favour exclusion to the same extent as was the case in Rocha.

[40] Turning to Grant’s third step, drug offences are very serious, and the seriousness of this particular offence is compounded by the quantity of the drugs seized from the Mercedes-Benz vehicle. This strongly favours inclusion.

[41] I accept the proposition that the exclusion of the evidence would not entirely gut the Crown's case in the limited sense that it would remain within the ability of a court to find the accused guilty of simple possession of cocaine because of the cocaine found at the Tuxedo Court residence. In my view, however, it effectively guts the Crown's case because it prevents a prosecution for possession for the purpose of trafficking when the significantly larger quantity of drugs seized from the trunk of Cole’s vehicle is plainly not for a personal consumption purpose, but only for a commercial trafficking purpose.

[42] On balance, I consider that the affiant’s failure to specifically state the grounds for searching the vehicle was a careless error that was not intentionally misleading and was made in good faith. Although the affiant should not have left it for the Justice of the Peace to “connect the dots,” I conclude that the first step only weakly favours exclusion. The search of the car, while a breach of Cole’s privacy rights, was substantially less intrusive than the search of a dwelling home. The second step therefore also favours exclusion weakly.

[43] As Doherty J.A. indicates in McGuffie, where the first two steps of the Grant test offer weak support for exclusion, the third inquiry will generally confirm admissibility. I find that to be the case here. The inclusion here of the evidence seized from the Mercedes-Benz vehicle would not harm the long-term repute of the administration of justice. Society’s interest in adjudication of this case on its merits strongly favours inclusion. The evidence will be admitted under s. 24 (2). The application is dismissed.

Michael G. Quigley J. Released: March 17, 2017