Court File and Parties

COURT FILE NO.: CR-15-90000526-0000 DATE: 20170113 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – T.A.E. Accused

Counsel: Arielle Elbaz, for the Crown C. Stephen White, for the Accused

HEARD: November 23 and 25, 2016

B.A. ALLEN J.

REASONS FOR DECISION

(Application, Charter s. 8 search warrant admissibility hearing)

OVERVIEW

[1] The defence re-elected trial by judge alone and the hearing proceeded as a blended voir dire.

[2] The applicant, T.A.E., brings this admissibility application claiming the police violated her right under s. 8 of the Charter of Rights and Freedoms to be free from unreasonable search when they entered her home on a search warrant and seized a quantity of crack cocaine and money. If I find a Charter violation, Ms. T.A.E. seeks further under s. 24(2) of the Charter to have the drugs excluded on the basis that to admit the drugs would bring the administration of justice into disrepute.

[3] Ms. T.A.E. seeks to attack the validity of the warrant primarily by way of a step 6 Garofoli application [1]. She also claims the warrant is invalid on the basis that Officer Duran failed to establish the statutory basis for seeking a telewarrant rather than seeking the customary warrant before a court.

[4] Ms. T.A.E. is charged with three counts of possession of cocaine for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act and one count of possession of proceeds of crime under s. 354(1) of the Criminal Code.

[5] The affiant on the information to obtain (“ITO”), Officer Duran, applied for and received the telewarrant on March 29, 2015. In obtaining the warrant the police relied on information provided by a confidential source (“the informant”) who provided information that Ms. T.A.E. was dealing drugs from her apartment. The police obtained a key from the apartment property manager on March 30, 2015. They then entered Ms. T.A.E.’s home at S[…] St., apartment 807, in Toronto to search for drugs and drug paraphernalia. They found Ms. T.A.E. at home and arrested her.

[6] The defence also argues the police sought and obtained a telewarrant under circumstances that were in violation of Ms. T.A.E.’s rights under s. 8 of the Charter, thereby rendering the warrant invalid.

THE LAW AND LEGAL PRINCIPLES

Statutory Pre-conditions

[7] Section 487(1) of the Criminal Code provides the statutory pre-conditions for obtaining a search warrant. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing court there are reasonable grounds to believe an offence has been committed or will be committed at the property.

[8] The Supreme Court of Canada has further defined the requirements of the statutory pre-conditions of a warrant. The issuing court must look at whether the police demonstrated reasonable and probable grounds to believe: (a) that an offence was being committed, had been committed or would be committed, and (b) that evidence of the offence would be found at the specified time and place: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.).

[9] A voir dire is held to determine the admissibility of evidence. The judge on the voir dire conducts a review of the warrant to determine whether the evidence proposed for admission satisfies the pre-conditions set out in s. 487(1) of the Criminal Code.

Confidential Informants

[10] The police in the case before the court acted on information obtained from one confidential informant.

[11] Strict rules govern the police use of information from informants to support an application for a search warrant. Special privilege protects a confidential informant. Informants are often critical to police investigations and put themselves at risk if information is disclosed that could identify them. The police and Crown have a positive obligation to protect the identity of a confidential informant: R. v. Leipert, [1997] 1 S.C.R. 281 (S.C.C). This obligation also falls on the court.

[12] Information in an information to obtain that could potentially identify the informant is redacted to protect the privilege. A question then arises as to how the defence could resist a warrant when information that might be material to a challenge could lay behind the redactions making it inaccessible to the defence for full answer and defence. That is, some or all of the precise and detailed information that is unavailable could identify the informant.

[13] Informer privilege is paramount but sufficient information must be available in the information to obtain upon which the issuing court can assess the credibility and reliability of the informant and the information provided: R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 215 – 216, (S.C.C.). From the perspective of the defence, its ability to test the reliability of the informant and their information, to test the compelling nature of the information and the corroboration of the information may be impaired by protecting the informant.

[14] Redaction or editing of information is a means by which the identity of an informant is protected during the review proceedings.

[15] The ITO before this court contains redactions of some details of the investigative information that provided the grounds for the police to seek the warrant, as well as redactions of information about the informant and their background. The Crown takes the position that the removal of redactions would open the door to revealing the informant’s identity. The defence argues the redacted information left available as related to the informant is insufficient to assess their credibility and reliability and insufficient to establish a justification for the issuance of the warrant.

[16] Ground rules have been established by the courts over the years to govern the review process.

Challenge to a Warrant

Facial Challenge and Sub-Facial Challenge by Cross-Examination of Affiant

[17] The validity of an information to obtain can be challenged both facially and sub-facially.

[18] A facial challenge requires the reviewing judge to examine the information to obtain and determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19, (S.C.C.). The record on a facial examination is fixed. It is the information to obtain and not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, at para. 69, (B.C. C.A.).

[19] A sub-facial attack on an information to obtain goes further. It looks behind the warrant to challenge the credibility and reliability of its contents. One tool available to the defence to attack the warrant sub-facially is through cross-examination of the affiant officer and sub-affiant officers, if applicable. Leave of the review court is required for cross-examination.

[20] The scope of cross-examination is limited to an attempt to elicit testimony that tends to discredit the existence of a pre-condition to issuance of the warrant, that is, whether there were reasonable and probable grounds to issue: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 3 and 31, (S.C.C.).

[21] Cross-examination may result in amplification or an expansion of the record that was before the issuing justice if cross-examination can reveal that the information relied upon was inaccurate, incomplete or false. The review court is required to correct minor errors in the information to obtain. Evidence relied upon to amplify the record must be evidence available to the police in their investigation at the time the warrant was sworn: R. v. Pires; R. v. Lising, at para. 41; R. v. Morelli, at para. 43.

[22] The defence in the case before me chose not to apply for leave to cross-examine the affiant police officer.

[23] As will be seen, in part, the defence’s arguments on the insufficiency of the redacted ITO were directed to raising questions as to whether or not information in the redacted ITO is true, misleading, ambiguous, or insufficient in detail.

[24] Without information that might have been gained from cross-examination, when challenging the credibility and reliability of the informant and the information they provided, the defence’s focus in his submissions was restricted to attacking the information on the face of the redacted ITO. Because the defence did not avail itself of a sub-facial challenge by cross-examining Officer Duran, it could be that a potential source of information that might have been utilized to challenge the warrant was lost to the defence.

The Debot Inquiries

[25] R. v. Debot poses three inquiries directed to determining whether the reasonable grounds to believe standard is satisfied, whether the information in an information to obtain is sufficiently reliable to support a reasonable belief. Reliability goes to the accuracy and trustworthiness of the informant and the informant’s information, to be assessed in the totality of the circumstances. The three inquiries are:

(a) Was the source credible? (b) Was the information predicting the commission of the offence compelling? (c) Did the police do an investigation to corroborate the information before conducting the search?

(R. v. Debot, at pp. 215 - 216)

[26] When weighing the three factors they are not to be treated as separate tests. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two: R. v. Debot, at p. 215.

[27] Addressing the Debot inquiries presents a challenge in view of the cloak of confidentiality that must be maintained over some information in the information to obtain. The review court is required to balance the Leipert informant privilege interest against the interest expressed in Debot of having available sufficient reliable information. This court addressed this challenge in R. v. Learning:

The extensive editing of [the officer’s] grounds in the case at bar was driven by the fact “Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity”, as McLachlan J. (as she then was) put it in Leipert, supra, at p. 393. The conundrum in which the police and Crown find themselves, in cases like the one at bar, is that Debot and s. 9 require disclosure of the informer’s means of knowledge and disclosure of as much detail as possible, as well as past history of reliability. The more that these matters are disclosed the more likely it is that the tip will rise to the statutory and constitutional standard of reasonable and probable grounds. And yet the more these matters are disclosed, the more likely it is that the details and the means of knowledge will implicitly identify the informer.

(R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, at para. 100, (Ont. S.C.J.))

[28] The rules that govern the drafting of the information to obtain are not strict. It is not expected to be drafted to perfection. Flaws are to be expected: R. v. Nguyen, 2011 ONCA 57, at para. 57, (Ont. C.A.). Inaccuracies or material facts not disclosed do not necessarily detract from satisfying the statutory pre-conditions (R. v. Pires; R. v. Lising, at para. 30).

[29] Errors in the information, “whether advertent or even fraudulent, are only factors to be considered in deciding whether to set aside the authorization and do not by themselves lead to automatic vitiation of the authorization”: R. v. Bisson, [1994] 3 S.C.R. 1097, p. 1098, (S.C.C.). The Ontario Court of Appeal in R. v. Nguyen remarked:

… the review is not an exercise in examining the conduct of the police with a fine tooth comb, fastening on their minor errors 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 (R. v. Nguyen, at paras. 57-58).

[30] A balance must be struck between the interest in Leipert to protect against disclosure of informant identifying information against the competing interest in Debot to ensure there is sufficient information to satisfy the credibility, compelling and corroboration criteria.

[31] As will be discussed below, the disclosure process for wiretaps as set out in Garofoli has been established as the means to achieve some balance. The Ontario Court of Appeal in R. v. Rocha recommended Step 6 in the Garofoli wiretap application process be applied to search warrant review: R. v. Rocha, 2012 ONCA 707, [2012] 112 O.R. (3d) 742, at paras. 55-59, (Ont. C.A.).

[32] As will also be discussed more fully below, a judicial summary of the redacted information is the tool that has been used to satisfy the R. v. Rocha recommendation. The idea behind the summary is to allow the defence more information, information which could allow the accused to be sufficiently aware of the redacted material to challenge it in argument or by evidence: R. v. Garofoli, pp, 194 - 195.

[33] As alluded to earlier, another possible tool to tip the balance of information available to the defence is cross-examination of the affiant. The defence, however, did not request leave to take advantage of this tool.

Framework of the Voir Dire Admissibility Procedure

[34] An inquiry is convened to consider evidence the Crown seeks to adduce of things found and seized during the search of a person, place or thing. Items found and seized during a search which are relevant and material are prima facie admissible. This remains true whether the police conduct during the search that yielded the evidence was lawful or unlawful: R. v. Sadikov, 2014 ONCA 72, at para. 34, (Ont. C.A.).

[35] Constitutional considerations are naturally engaged when state agents conduct searches and seize items from the private domain of a person, particularly from a home. To address the constitutional issues a two-step admissibility inquiry is conducted where at each step the party claiming a violation and seeking exclusion of the evidence has the burden of proof on a balance of probabilities.

[36] The first step is an inquiry into whether constitutional rights were violated by the state conduct. If a violation is found, a second-step inquiry into the admissibility of the evidence acquired by the breach is conducted pursuant to s. 24(2) of the Charter: R. v. Sadikov, at para. 35.

Role of the Review Judge on the Voir Dire

[37] Courts have developed general principles to guide the court’s assessment of the warrant at the review level:

• The issuing justice makes their decision whether the statutory pre-conditions have been met from the evidence as a whole, from a common sense, practical not technical approach to the evidence: R. v. Wilson, at para. 52.
• The warrant is presumed valid and it falls to the defence to prove invalidity on a balance of probabilities: R. v. Wilson, at para. 63.
• The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewing judge to substitute their view for that of the issuing court: R. v. Garofoli, at p. 1452.
• The role of the review is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued. There has to be some evidence that might reasonably be believed on the basis of which the warrant could have issued: R. v. Morelli, at para. 40: R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, at para. 1452.
• It is no part of a reviewing judge’s mandate to determine whether they would issue the warrant based on the amplified record: R. v. Sadikov, at para. 88.
• The reliability of the information must be at the time of the application for a warrant. It cannot be considered ex post facto from the results of the search: R. v. Garofoli, at para. 68 and R. v. Araujo, at paras. 54 - 56.

[38] Certain other principles have particular applicability to issues that emerged in this case:

• The review is not a trial and must not take on the job of exploring the truth of the allegations in the indictment: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21, (Ont. C.A.); leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix (S.C.C.).
• Warrant review requires a contextual analysis. Reference to all the information within the four corners of the ITO provides a fair and reasonable context. The review must involve a scrutiny of the whole of the document and not a limited focus on an isolated passage or paragraph: R. v. Sanchez (1994), 20 O.R. (3d) 468, at p. 9, (Ont. Ct. (Gen. Div.); R. v. Garofoli, at p. 1452; and R. v. Ebanks, at para. 20.
• Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673, at para. 20, (Ont. C.A.).
• The reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the information to obtain: R. v. Vu, 2013 SCC 60, at para. 16, (S.C.C.).
• It is not the review court’s role to draw inferences or to prefer one inference over another: R. v. Sadikov, at para. 88.

PERTINENT CONTENTS OF THE INITIAL REDACTED ITO

Page 7

Overview

1. On [redaction] March 2015, the Toronto Drug Squad entered into an investigation in relation to a female selling crack cocaine in the City of Toronto.

Background of the Investigation

4. On [redaction] March [redaction] 2015, I received information from Police Constable Michael FERNANDES (9777) in regards to a female involved in the sale of crack cocaine, in the City of Toronto. PC FERNANDES is assigned to Toronto Police Service 14 Division-Community Response Unit. PC FERNANDES provided me the following information.

Page 8

a) A female known as T.A.E. is dealing crack out of her apartment at S[…] St., unit # 807. b) She is female black, 29 years, 5′ 5″, 250 lbs. [redaction]. c) She lives with her boyfriend, [redaction] His name is Michael. [redaction] d) The source was in the premise. [redaction] observed [redaction] cocaine [redaction]. e) [redaction]. f) See Appendix D in relation to the source background.

Page 11

Grounds to Believe That the Items (as stated in Appendix A) Are at the Location to Be Searched (S[…] Street, Unit #807)

9. On [redaction] March [redaction] 2015, the Toronto Drug Squad received information in regards to T.A.E. involved in the sale of crack cocaine, in the City of Toronto.

Page 14

APPENDIX “D”

1. The following information pertains to the confidential source: a. The source is a carded informant with the Toronto Police Service – Source Management Section. b. The source has been proven reliable in the past which have resulted in drug seizures. The source has been providing information to Police for the last [redaction] years. c. The source has a criminal record. A copy of this criminal record has been attached to this appendix. d. The source [redaction] has firsthand knowledge of the information provided. e. The source’s motivation for providing police with information is [redaction].

Page 22 (according to fax page numeration)

[except for the handwritten editor’s note, this page is otherwise blank]

Editor’s note: Details of criminal record were included in this section.

THE POLICE INVESTIGATION

[39] The police conducted an investigation to confirm the information provided by the informant.

[40] In March 2015, Officer Fernandes relayed information to Officer Duran, the affiant on the ITO. The information Officer Duran received from Officer Fernandes was that a female identified as T.A.E., residing at S[…] Street, was dealing crack cocaine. Officer Canepa was an undercover officer involved in the investigation.

[41] The police conducted surveillance on Ms. T.A.E.’s apartment on March 26, 2015. Officer Duran attended S[…] St. and learned that she is listed on the building marquis and that her name is associated with buzzer code 1078.

[42] The police conducted investigative computer checks on Ms. T.A.E.. The checks revealed the following information:

• A photo of T.A.E. taken on 2014 02 08 and a date of birth, […], 1985.
• A description, female, non-white, 5′ 6″, 122 lbs., blonde hair, dark eyes, tattoos “O.E.” on left wrist and “DEREK” on her neck, roses on right side of neck.
• A criminal record with 33 entries from 2007: breaches of court orders, possession of proceeds of crime, possession for the purpose marijuana and cocaine, trafficking in cocaine; victim of an assault; 12 convictions dating back to 2005: possession of property obtained by crime x 2, fail to comply/appear, possession of Schedule I substance for the purpose of trafficking, possession of Schedule I substance, perjury, assault; 2012 08 16 possession of Schedule I substance for the purpose of trafficking.
• The most recent occurrence entry, March 9, 2015: CAS (Children’s Aid Society) requested police presence at S[…] Street regarding child abuse investigation; T.A.E.’s son O.E., was determined by CAS to be a child in need of protection and CAS apprehended him; O.E. was found to have a bite mark on his arm; Toronto Police determined “an inappropriate disciplinary decision made by T.A.E.”: phone number for T.A.E. from CAS records related to this occurrence [phone number 1].
• Information in CAS report that O.E.’s grandmother advised that T.A.E. is in possession of crack cocaine in her apartment.
• There were negative results in the attempt to identify the boyfriend.

[43] Based on the information from the computer checks the police conducted further investigations and provided the following information on Ms. T.A.E..

[44] The redacted ITO indicated that on March 29, 2015, at 6:44 p.m., Officer Duran provided Ms. T.A.E.’s phone number, [phone number 1], to the undercover officer, Officer Canepa. Officer Canepa was detailed to call Ms. T.A.E.. Officer Canepa phoned the number and “had a drug-related conversation.” The person on the other end of the call refused to sell drugs to Officer Canepa unless he had the person who referred him to her call her and vouch for him.

[45] The ITO indicates Officer Canepa gave an opinion based on 40 years’ experience as a police officer, his expertise as an expert and 20 years as an undercover officer that persons previously charged with drug offences often refuse to sell drugs when the buyer has not been vouched for. His further opinion was that he believed Ms. T.A.E. was involved in drug trafficking.

THE SEARCH

[46] The search warrant was executed on March 30, 2015. The police entered with a key obtained from the property manager. There is no evidence the entry and manner of search fell below an appropriate standard. Ms. T.A.E. was present in the apartment at the time and was arrested.

[47] A search of Ms. T.A.E. incident to the arrest disclosed she was in possession of 1.02 grams of crack cocaine and $25 in her bra. The police seized the 1.02 grams of crack cocaine from Ms. T.A.E. and seized 65.05 grams of crack cocaine and 65.81 grams of powder cocaine from inside two wooden jewelry boxes on top of a dresser in the Ms. T.A.E.’s bedroom. The police seized $14,500 from a safe under the bed of her six year old son, O.E..

THE GAROFOLI PROCEDURE

Procedure before Step 6

[48] Garofoli sets down a six-step process for considering the validity of a wiretap application. As was noted earlier, these steps have been adapted to challenges to the validity of search warrants. The first five steps involve editing or redacting information in the information to obtain. Step 6 involves the court assessing the sufficiency of the ITO as redacted and determining whether summaries of the individual redacted areas will allow the defence a sufficiently full and fair challenge to the warrant.

[49] The court followed a somewhat truncated version of the first five steps. The Crown provided the court and defence with a copy of the ITO containing the proposed redactions.

[50] The defence made submissions on the effect of the redactions on the defence’s ability to challenge the reliability of the authorization. The defence argued the information available in the redacted ITO was insufficient to advance an effective challenge to the validity of the warrant. The court also heard reply submissions from the Crown.

[51] The parties made submissions at both the pre-Step 6 and the Step 6 stages. The submissions made before Step 6 addressed the sufficiency of the initial draft of the redacted ITO. The submissions made at Step 6 addressed the amended draft of the redacted ITO and the Crown’s summaries of certain redacted areas of the ITO. I will deal with submissions made at both stages below when applying the Debot criteria framework.

Procedure at Step 6

[52] At Step 6 the Crown is required to state whether she believes the warrant could be supported by the redacted ITO. The Crown took the position that the warrant could be supported by the redacted ITO.

[53] It is a function of Step 6 to offer a compromise between having all the redactions on an information to obtain remain intact, which would impede the defence’s ability to challenge the warrant, and all the redactions being removed, which would jeopardize confidentiality.

[54] The middle option is a summary of the redacted material aimed at making the accused sufficiently aware of the redacted material - information which satisfies the court that the accused is sufficiently aware of the redacted material to challenge the warrant in argument or by evidence. A judicial summary is not a complete answer to apprising the defence of the information that authorized the warrant or to allowing full answer and defence. The Supreme Court of Canada offers some consolation in observing that on Charter admissibility proceedings where the merits of guilt or innocence are not being prosecuted, the right to full answer and defence is somewhat attenuated: R. v. Pires; R. v. Lising, at paras. 29 - 30.

[55] After hearing the parties’ submissions, I accepted the defence’s position that the redacted ITO is not sufficient for an effective defence challenge.

[56] As required with a determination that a redacted ITO is insufficient, the Crown applied to the court to request it consider so much of the excised material as necessary to support the warrant. The court considered the Crown’s submission and agreed to the request. The court requested the Crown prepare a Crown Summary of the redacted information with the goal of revealing so much of the information that would allow the defence to challenge the sufficiency of the authorization while maintaining adequate protection of confidential information.

[57] The court is next required to review the Crown Summary to determine its sufficiency. To this end, the Crown provided the court with the Crown Summary and the unredacted ITO. For obvious reasons of confidentiality, the defence was not provided the unredacted ITO or the Crown Summary.

[58] Courts have addressed the question of whether the review judge should have available both the redacted and unredacted ITOs for its assessment of the Crown Summary and for assisting with drafting the judicial summary. It has been held, and in my view it stands to reason, that this is the only logical approach. The review court must be able to consider what was before the issuing justice: R. v. Brown, [2013] O.J. No. 5954, at para. 37, (Ont. S.C.J.); and R. v. Sahid, 2011 ONSC 979, at para. 29, (Ont. S.C.J.).

[59] This means the Crown and the court have information not accessible to the defence and, while this is not ideal for the defence, note is taken of the Supreme Court’s observation that the right to full answer and defence is somewhat attenuated.

[60] In reviewing the Crown Summary and drafting a judicial summary the court is guided by the Ontario Court of Appeal’s concerns expressed in R. v. Omar 2007 ONCA 218 about the precariousness of deciding whether the disclosure of certain information in a redacted ITO could identify the informant or narrow the pool of whom the informant might be:

The informer had provided the police with very detailed information about where the respondent would be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would be found. The pool of people who would be privy to that precise and detailed information must be very small. The individuals in that pool are likely known to the respondent. Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer.

(R. v. Omar 2007 ONCA 218, at 255, (Ont. C.A.))

[61] The court can accept the Crown Summary as drafted or raise inquiries and recommend changes or additions directed to enhancing the information available to the defence while guarding confidentiality. The court also looks to the possibility of removing redactions from the ITO in order to disclose information that will not compromise confidentiality.

[62] In terms of the process I followed, I reviewed the Crown Summary outside the court and returned to the court to make inquiries of the Crown about removal of some redactions and about changes or additions to the Crown Summary. This exchange between the Crown and the court was conducted in open court with Ms. T.A.E. and defence counsel present. This necessitated great care by the court and Crown to communicate in the presence of the defence in terms that did not inadvertently disclose information that would identify the informant or narrow the field of those who might be the informant.

[63] After making discreet inquiries and suggestions in court I gave direction as follows on removing redactions in two areas of the redacted ITO:

• that the redaction at page 8, paragraph 4(b), be removed in the description of Ms. T.A.E. disclosing that Ms. T.A.E. “often wears wigs.”
• that the redaction at paragraph 14 1(e) be removed to disclose that the informant’s motivation was “monetary”.

[64] The summary was not finalized on the first day of the hearing. The question of disclosure of the informant’s criminal record had not been discussed. On the following day further consideration was given to changes to the Crown Summary. The Crown indicated she had reconsidered whether further redactions might be removed and whether summaries could be done of some of the redacted areas of the redacted ITO.

[65] The Crown presented a second draft of the Crown Summary. The following are summaries of redacted areas the Crown presented in her second draft of the Crown Summary.:

• On page 8, at paragraph 4(c), with regard to Ms. T.A.E.’s boyfriend, the Crown indicates that the redacted area “gives further details about the accused’s boyfriend and the accused’s relationship with her boyfriend.”
• On page 8, at paragraph 4(d), concerning the informant at Ms. T.A.E.’s apartment, the Crown states the redacted area contains: “Timeline of when the source was at the accused’s apartment and further details as to what the source observed at the accused’s apartment, including the quantity of cocaine observed and how it was packaged.
• On page 8, at paragraph 4(e), the Crown indicates the redacted area contains “Further details regarding the location of the cocaine in the accused’s apartment and information regarding other drug indicia in the apartment.”
• On page 14, at paragraph 1(d), the Crown indicates that the redacted area contains information on “Whether or not the source is involved with cocaine and if so, details about the source’s involvement with cocaine.”
• On page 22, which is blank but contained the source’s criminal record, the Crown provides the following summary for the record: “The source has a criminal record which does not include any convictions related to fraud and/or deceit.”

[66] I accepted that the redacted ITO, with the redactions removed as noted above, together with the second draft of the Crown Summary provide a sufficient basis for the defence to challenge the warrant by evidence or by argument.

[67] The final draft of the Crown Summary became the Judicial Summary. The Judicial Summary was presented to the defence and became evidence along with the redacted ITO and other evidence.

PARTIES’ POSITIONS

The Defence’s Position

The Debot Factors

Is the Informant and the Information Credible and Reliable?

[68] According to the defence, evidence that confirms the credibility and reliability of the informant and their information is totally lacking. According to that view, the information in the redacted ITO is insufficient to establish the credibility and reliability of the informant and the information provided to the police.

[69] The defence takes the position that the statement on Schedule “D” that the informant has been proven reliable in the past is a bald, conclusory assertion. This assertion without quantitative and temporal information, in the defence’s view, would not inform the issuing justice of the informant’s reliability.

[70] The information that the informant is carded with the Toronto Police Service Source Management Section, in the defence’s estimation, lacks sufficient detail about how long the informant has been carded. The fact that the information on page 14, paragraph 1(b), indicates the informant has been providing information to the police for the last [redacted] number of years is not evidence of how long the informant has been carded but rather only how long the informant has been providing information.

[71] The defence states whatever number of years is behind the redaction would add nothing to the likelihood an offence is being committed at Ms. T.A.E.’s apartment. There is no information about the quality of the information the informant gave to the police during those years.

[72] The defence asserts that the statement that using the informant has resulted in drug seizures lacks details as to how frequently the informant provided information that actually led to drug seizures, how many drug seizures the informant assisted with and the type of drugs seized, that is, whether seizures involved a small quantity of marijuana from an individual person or a large seizure of heroin from the streets. There is no information indicating the currency of the drug seizures. There is no information about whether the informant ever gave false information.

[73] The initial redacted ITO was blank as to the informant’s criminal record. A criminal record especially involving certain kinds of crimes can be an indicator of poor credibility and reliability - evidence of dishonesty and untrustworthiness. The defence asserts that information that merely states the informant has a criminal record is of no assistance in determining the credibility and reliability of the informant.

[74] In the defence’s view, the statement in the Judicial Summary that the informant’s criminal record does not include any convictions related to fraud or deceit is not helpful. According to the defence, it would be of some assistance to know any other convictions as for instance for breaking and entering or drug trafficking. These too affect credibility.

[75] The initial redacted ITO contains no information about the informant’s motivation for providing the police information. The Judicial Summary added that the informant’s motivation was monetary gain. The defence submits that further factors such as animus or competition in the drug world, along with monetary gain as motivators, could affect the credibility and reliability of the informant and the information.

Is the Information Compelling?

[76] The defence points out the information in the redacted ITO on page 7, at paragraph 4, indicating Officer Duran received information from Officer Fernandes in regard to a black female involved in the sale of crack cocaine lacks compelling detail. It lacks the required nexus between the crime and Ms. T.A.E.’s apartment. The defence submits this paragraph in the redacted ITO is problematic because no information is available that confirms the reliability of the information from Officer Fernandes or whether the information came from the informant, that is, whether it was third-hand information or not.

[77] The defence further submits the information on page 4, at paragraph 4(a) stating that Ms. T.A.E. is dealing drugs “out of her apartment at S[…] St., unit # 807” lacks the necessary temporal nexus between the crime and the location of the crime. Details are lacking as to when Ms. T.A.E. was dealing out of her apartment and to whom.

[78] The defence also submitted that the words “out of her apartment at S[…] St., unit # 807” are ambiguous. According to the defence, it is not clear whether the words mean Ms. T.A.E. was dealing crack “outside of” the apartment or dealing from her apartment unit.

[79] Appendix “D”, paragraph 1(d), contains a statement that the source has first-hand knowledge of the information provided. The defence does however acknowledge that the summaries on page 8, at paragraphs 4(d) and 4(e) of the Judicial Summary indicate to some extent that the informant had first-hand knowledge.

[80] The summaries of those paragraphs contain information that the source was at Ms. T.A.E.’s apartment, the timeline of when the source was there, what the source observed in the apartment including the quantity of cocaine, the location of the cocaine, how it was packaged and that the source saw drug indicia at the apartment.

[81] The defence takes the position these seemingly compelling details of temporal and locational nexuses to the crime are only compelling if the informant and the information are credible and reliable and the information corroborated by the police. In the defence’s view, the other Debot criteria have not been met which diminishes the compellability of the information about the informant being at the apartment.

Is the Information Corroborated?

[82] It is the defence’s view that the police did not sufficiently corroborate the information that Ms. T.A.E. is a drug dealer who possessed and trafficked crack cocaine from her apartment at S[…] St., unit # 807. The defence submits the corroboration the police achieved was principally of public information and information known to friends and acquaintances. The address of Ms. T.A.E.’s apartment and her unit number, her description as a black woman, her height, weight, that she wears wigs and lives with her boyfriend, Michael, are examples of information that could be known to many. The information is not sufficiently compelling so as to identify the accused from a pool of women meeting that description.

[83] The Crown advances the telephone conversation Officer Canepa purportedly had with Ms. T.A.E. as corroborative evidence.

[84] The defence’s position is that the information about the drug-related telephone conversation between Officer Canepa and Ms. T.A.E. lacks compelling details to corroborate the information that Ms. T.A.E. is a drug dealer. There is no confirmation that it was the accused on the other end of the call. Officer Canepa used the phone number for Ms. T.A.E. obtained from the CAS records to call Ms. T.A.E. but there is a lack of information confirming she was the person who received the call.

[85] The defence also asserts that the statement on page 7, at paragraph 3: “An undercover officer contacted T.A.E. and had a drug related conversation”, lacks details of the substance of the conversation. As such, according to the defence, this information does not corroborate that Ms. T.A.E. is involved in dealing crack cocaine from her apartment.

[86] There is insufficient information about when and where this conversation occurred so as to establish the necessary temporal and locational connection to drug dealing. In the defence’s view, Officer Canepa’s belief stated on page 10, paragraph 7(c) that Ms. T.A.E. is involved in drug trafficking is given without him providing the basis for that belief.

[87] The defence also points out that the information obtained from the police investigation describing Ms. T.A.E. does not corroborate in any meaningful way the information from the source. The police investigation provides information not available in the redacted ITO and some information different than that in the redacted ITO.

[88] For instance, the search information describes Ms. T.A.E. as non-white instead of black, 122 lbs. instead of 250 lbs. and contains a date of birth, where the redacted ITO contains no date of birth. The search reveals Ms. T.A.E. has blonde hair with tattoos where the redacted ITO contains no such information. Also, the Judicial Summary indicates Ms. T.A.E. sometimes wears wigs. The defence also points out the fact that the informant did not mention the tattoos on Ms. T.A.E.’s neck and wrist along with the other descriptors he gave weakens the connection between the biographical information on the redacted ITO and the police search records.

[89] The police search produced Ms. T.A.E.’s criminal record. The record contains two convictions for possession of a Schedule I drug for the purpose of trafficking and possession of a Schedule I drug.

[90] The defence argues that the accused’s history of having convictions on the same types of offences as those before the court cannot alone support the issuance of a warrant and should not be over-emphasized in assessing the validity of the warrant: R. v. MacDonald, at para. 22. In the defence’s view, the criminal record does not in any event corroborate the source’s information since there is no compelling information available on the redacted ITO that temporally and by location connects the accused to possession or trafficking cocaine at the apartment at the time of the search.

[91] The Crown relies on a statement made by the grandmother of Ms. T.A.E.’s son, O.E., to corroborate the informant’s information.

[92] The defence argues the police relied on an uncorroborated, prejudicial statement in the redacted ITO at paragraph 5(f)(iii) purportedly made by the grandmother in relation to the CAS investigation that was initiated in January 2015.

[93] The CAS attended at Ms. T.A.E.’s apartment in regard to a child abuse complaint against Ms. T.A.E. concerning her son, O.E.. The CAS called the police to assist. It is not clear what date that occurrence took place. It was entered into a police database on March 9, 2015.

[94] The CAS report refers to a statement made by the child’s grandmother, as the redacted ITO states, “advising that T.A.E. is in possession of crack cocaine in her apartment.”

[95] The defence submits there are no details about when the grandmother made this statement, when the observation was made, whether the statement on the redacted ITO came from first-hand knowledge of the grandmother or from the observation of others. The defence argues for that reason the information is simply pejorative for lacking necessary compelling detail and has the value of mere gossip or rumour.

The Crown’s Position

Principled Criticisms of Defence Position

[96] The Crown criticizes the defence’s attack on the redacted ITO and Judicial Summary from the perspective of basic principles.

[97] The Crown starts from the premise that a warrant is presumed valid and it is the defence’s task to rebut that presumption. The review judge must consider the record before the authorizing justice, amplified on review, and decide if on reasonable grounds the warrant could have issued: R. v. Araujo, at para. 19. The Crown submits the defence looked beyond the record before the issuing justice and raised issues about information which was not part of the record before the issuing court.

[98] The Crown argues that the review of the validity of the warrant must be undertaken on the totality of the circumstances scrutinizing the whole of the document and not focusing on an isolated passage or paragraph: R. v. Sanchez (1994), at p. 9; and R. v. Garofoli, at p. 1452. It is the Crown’s position that throughout his submissions the defence dissected portions of the ITO and analyzed them outside the full context of the ITO.

[99] The Crown also takes the position that the defence’s challenge to the warrant places a burden of perfection on the manner in which the ITO is drafted. The Crown points to the fact that police officers draft an information to obtain relying on their experience as police officers and do not have the assistance of a lawyer. This was the case with Officer Duran.

[100] The Crown submits it has been held that deference should be shown for the training of the police officer: R. v. Nguyen, at para. 57 and R. v. Sanchez, at p. 9. The Crown posits that the defence engaged in an exercise of parsing out certain individual paragraphs and sentences in the redacted ITO to single out what he claimed were deficiencies without regarding those passages in the context of the whole of the information in the ITO.

[101] The Crown further points to the notion that the issuing justice is permitted to draw reasonable inferences from the stated facts. The authorizing justice is not obliged to underline the obvious: R. v. Sanchez, at p. 9. The Crown asserts that there were various passages of the ITO referenced by the defence with regard to which the defence raised issues about what inferences the justice could possibly have drawn. It is the Crown’s view, with respect to those passages, that it is obvious what the justice understood when looking at the warrant in its totality.

The Debot Factors

Are the Informant and Their Information Credible and Reliable?

[102] The Crown argues the informant scores well on the credibility and reliability standard. She refers to the fact the informant is not anonymous and that they have been carded with the police for a number of years and have been reliable in the past. There are details in the redacted ITO about the informant’s history as an informant, information that has led to drug seizures and information that indicates the informant is familiar with the drug culture.

[103] The Crown acknowledges the informant’s criminal record but relies on the fact that the informant’s criminal record does not contain crimes of dishonesty or deceit, a further point according to the Crown that favours the credibility and reliability of the informant.

[104] The motivation for the informant providing the information was redacted in the initial ITO but is now known to be monetary gain. The Crown made no submissions on the effect that knowledge of the informant’s motivation has on their reliability.

[105] The totality of this information, the Crown submits, speaks to the reliability of the informant.

Was the Information Compelling?

[106] The Crown’s view is that there is ample compelling information to support the issuance of the warrant. In the Crown’s view the police provided detailed information, from a reliable informant who was known to the police, that Ms. T.A.E. was selling crack cocaine.

[107] The Crown points to the following information, provided in the second draft of the redacted ITO, and refers to the summaries in the Judicial Summary of some of the redacted information.

• the name and gender of the accused, T.A.E.;
• the informant provided first-hand information;
• the description of the accused, her race, height, weight, eye colour and, as per the removal of a redaction, that the accused often wears wigs;
• as per the Judicial Summary of redacted information, that behind the redacted information there is the specific date the TPS received information regarding the accused;
• the accused’s residential address and unit number, S[…] St. unit #807, Toronto;
• that she lives with her boyfriend and as per the Judicial Summary of redacted information that under the redaction there are further details about the accused’s boyfriend and the accused;
• the information about the name of the drug;
• as per the Judicial Summary of redacted information, that behind the redaction there is a timeline when the informant was in the target apartment and what the informant saw in the apartment including the quantity of cocaine and how it was packaged;
• the information that the investigation started in March 2015 and the search was executed on March 30, 2015 after the informant provided the information, establishing the informant would have been in the accused’s apartment sometime in March 2015;
• as per the Judicial Summary of redacted information, that behind the redaction, there are details of the location of the cocaine in the accused’s apartment and information regarding other drug indicia in the apartment;
• as per the Judicial Summary of redacted information, behind the redaction, there are details of whether or not the informant is involved in cocaine and if so, details about the source’s involvement with cocaine;
• as per the Judicial Summary of redacted information, behind the redaction, there is information about the number of years the informant has been providing information to the police.

[108] The totality of this information, according to the Crown, provides compelling support for the issuance of the warrant.

Is the Information Corroborated?

[109] The Crown takes the position that the information provided by the informant was well corroborated.

[110] The Crown sees as strong corroboration the phone call undercover Officer Canepa made on March 29, 2015, the day before the search. The Crown points to the information that it was a drug-related call to the phone number for Ms. T.A.E. provided in the CAS records. According to the Crown, it is evident the call was to Ms. T.A.E. and that as Officer Canepa stated, he made the call undercover to attempt to have Ms. T.A.E. agree to sell drugs to him. He failed because Ms. T.A.E. wanted the person who connected Officer Canepa to her to call her and vouch for him.

[111] The Crown argues the drug buy attempt was a critical corroborative element in that the police did not only rely, as a justification for the search, on information obtained from the informant, the computer searches and surveillance. They also attempted to achieve a drug buy to further confirm the information about Ms. T.A.E. being a drug dealer.

[112] The Crown also points out that the police were able to confirm through the computer searches Ms. T.A.E.’s age, her description as non-white, with a height similar to that provided by the informant. However, the weight for Ms. T.A.E. in the informant’s information is 250 lbs., which is considerably inconsistent with the police search information of her weight being only 120 lbs. The police search provided the additional information that Ms. T.A.E. has a tattoo “O.E.” on her left wrist and has blonde hair. According to the Crown, the tattoo is corroborative of the information from the CAS investigation that Ms. T.A.E. has a son named O.E.. The fact Ms. T.A.E. often wears wigs may explain the police information that she has blonde hair.

[113] The Crown argues the issuing justice could draw a reasonable inference that Mr. T.A.E. is a drug dealer based on Officer Canepa’s call and her criminal record which contains convictions for possession of a Schedule I drug and possession of a Schedule I drug for the purpose of trafficking.

[114] Also as corroborative of Ms. T.A.E.’s involvement in drug dealing, the Crown also relied on the information in the CAS records that the grandmother stated that Ms. T.A.E. had cocaine in her apartment.

[115] The Crown asserts that in any case it is not necessary for the police to corroborate the precise crime alleged by the informant. When the police entered Ms. T.A.E.’s home she was found in possession of cocaine. She was not found trafficking the drugs. Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673, at para. 20, (Ont. C.A.).

[116] In the Crown’s view, on the totality of the evidence, the information provided in the redacted ITO as amended, together with the Judicial Summary, sufficiently meet the three Debot criteria and therefore provide reasonable grounds to support the issuance of the warrant.

ANALYSIS

General Observations

[117] My task is not to substitute my decision for that of the issuing justice but rather to determine if there is sufficient evidence on the basis of which the warrant could have issued. I start my analysis from the basic premise enunciated by the Supreme Court of Canada in R. v. Araujo:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply 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, at para. 51) (emphasis by author of cited decision)

[118] For reasons that follow, I conclude that there was sufficient information before the issuing justice that could have reasonably been believed on the basis of which the warrant could have issued. A warrant is presumptively valid and the defence has the burden on a balance of probabilities to disprove its validity.

[119] Defendants are presented with different avenues to challenge the warrant. One means is a sub-facial challenge through cross-examining the affiant. As noted earlier, cross-examination allows the defence to go behind the warrant to attack its validity by exposing possible errors, falsehoods, omissions, misleading information and ambiguities. There is also available an attack on the validity of the warrant through a challenge to the deficiencies on its face.

[120] The defence did not avail himself of the opportunity to seek leave to cross-examine Officer Duran to query the fullness and frankness of the information in the affidavit. While cross-examination is not an automatic right the defence might have made a case that questioning could elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization: R. v. Pires; R. v. Lising, at paras. 3 and 31.

[121] The defence’s position was based entirely on a facial attack on the sufficiency of the information in the redacted ITO and on a critique of the Judicial Summary. The test enunciated in R. v. Araujo, at para. 19: ̶ “The review judge must consider the record before the authorizing justice, amplified on review, and decide if on reasonable grounds the warrant could have issued” – is not entirely applicable to this case. There is no amplified record before the court. Neither the court nor either party have the advantage of a more extensive record with which to scrutinize the sufficiency of the warrant.

[122] The defence challenged the Crown’s view that the police had sufficient information before the search to establish there would be evidence at her apartment at the time of the search showing Ms. T.A.E. to be a drug dealer or in possession of cocaine for the purpose of trafficking. The defence’s approach to the challenge raised areas of inquiry that I found could have allowed grounds for the court to grant leave to cross-examine. With care to not disclose confidential information under cross-examination, Officer Duran might have been able to furnish further details in response to some of the defence’s queries.

[123] The defence asserted there is a lack of certain types of information that could bear on the Debot criteria, particularly with respect to credibility and reliability. For example, the defence questioned the lack of details on how many drug seizures the informant assisted with, what types of drugs were seized, the size of the seizures, etc. I find those questions might have been raised in cross-examination and possible responses given that would not jeopardize confidentiality.

[124] The defence found ambiguous what the Crown argued was compelling information being that “T.A.E. is dealing crack cocaine out of her apartment.” The defence submitted it is not clear if this passage means Ms. T.A.E. was dealing crack cocaine “outside of” her apartment, that is, somewhere other than at her apartment as opposed to from inside her apartment.

[125] The defence’s concern strikes me as stepping into the error R. v. Nguyen and R. v. Sanchez speak of regarding putting too high a standard on a police officer’s drafting skills: R. v. Nguyen, at para. 57 and R. v. Sanchez, at p. 9. It is evident to me that the passage refers to drug dealing from inside the apartment. But if the defence believed the passage is ambiguous then cross-examination of Officer Duran would assuredly have cleared any confusion.

[126] Further, to accept the defence’s alternative interpretation of the passage would be for the court to draw an inference that would not have been drawn by the issuing justice. It is an important piece of information since on a plain reading if believed it provides information which could be probative of a statutory pre-condition. It is not the review court’s role to draw its own inferences or to prefer one inference over another: R. v. Sadikov, at para. 88.

[127] The defence raised a question in his submissions as to whether Officer Fernandes, who provided the informant’s information to the affiant, Officer Duran, was the informant handler. I think it is appropriate here to again point to the fact that the review judge must take into account that the authorizing justice may draw reasonable inferences from the information in the information to obtain: R. v. Vu, at para. 16 and R. v. Sadikov, at para. 88.

[128] I believe it is a reasonable inference from the full context of the redacted ITO that Officer Fernandes was the informant handler. Assessment of the contents of the warrant requires a contextual analysis: R. v. Garofoli, at p. 1452. Nevertheless, without breaching confidentiality the defence might have sought clarity on this by cross-examining Officer Duran.

[129] The Crown submitted that the defence’s attack on the redacted ITO took the form of a piecemeal, line-by-line parsing of the document without considering each passage in the totality of the information. The defence’s response to that submission was that it would not be possible to appreciate the totality of the information without examining its constituent parts.

[130] To that dispute I respond that the defence did ask the court to examine certain words, lines and passages of the redacted ITO. He went to great lengths to breakdown the content of those areas of the document and to point to what he argued are deficiencies.

[131] While it is expected that a party would scrutinize parts of an ITO that exercise is only fruitful in assessing the validity of a search warrant if the parts examined are related back for consideration within the four corners of the entire document. I do not think the defence took this last step in many instances.

[132] For instance, the defence pointed to the redacted ITO on page 7, at paragraph 4 where Officer Duran indicates he received information from Officer Fernandes that in March 2015 a black female is selling crack cocaine in Toronto. The defence asserted this information lacks the required nexus between the crime and Ms. T.A.E.’s apartment.

[133] Using a contextual analysis would require one to consider that passage together with page 7, at paragraph 4.

[134] The latter paragraph again references the black female selling crack cocaine. This is stated immediately before Officer Duran indicates that Officer Fernandes provided the information given to him by the informant that: “A female known as T.A.E. is dealing crack cocaine out of her apartment at S[…] Street.”

[135] From a contextual view, page 7, paragraph 4 is as the title says “an overview” that contains a general statement of some critical information the informant provided. Pages 7 and 8, paragraph 4 (a) particularizes the information set out in the general overview.

[136] The defence also asserted that the Judicial Summary did not provide sufficient details. In his view, the Judicial Summary did not meaningfully enhance the defence’s ability to challenge the existence of the statutory pre-conditions. For reasons I will expand on later in my discussion on the Debot criteria, I find the Crown provided a significant amount of information in the critical areas related to the statutory pre-conditions. The Judicial Summary is not required to give precise details. The court need only be satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. R. v. Garofoli, at para. 6 (emphasis added).

The Debot Factors

[137] The three factors are not constituted as separate tests. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two: R. v. Debot, at p. 215. With that principle in mind, for the following reasons, I conclude that the information before the issuing justice was sufficient to form reasonable and probable grounds to issue the warrant.

Is the Informant and their Information Credible and Reliable?

[138] I find the information about the informant’s past performance as a carded informant who has provided information to the Toronto Police for a [redacted] number of years is evidence of the informant’s reliability. Added to this is the information that the informant has provided information to the police that has led to drug seizures.

[139] As noted above, the defence argued there is an absence of more particularized information about the number of seizures the informant assisted with, the type of drugs seized and the scale of the seizures.

[140] The information sought by the defence would be added information not before the issuing justice. A warrant validity review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity with added information for the reviewing judge to substitute their view for that of the issuing court: R. v. Garofoli, at p. 1452. As the court in R. v. Araujo held:

Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.

(R. v. Araujo, at para. 46)

[141] An informant’s criminal record can pose a challenge to their credibility and reliability. Not infrequently persons with criminal records lead lives marked by trust and honesty issues. On the other hand, if the crimes in their record do not involve direct crimes of dishonesty or deceit, like the informant in this case, there may not be, in relation to their criminal record, as much need for concern about their credibility and reliability.

[142] Also important to consider is the accused’s criminal record and its effect on the credibility of the informant. That is, the probative value of the accused’s criminal record as it relates to the informant’s credibility depends on the similarity of the crime alleged by the informant to the crimes in the criminal record of the accused.

[143] Ms. T.A.E. has an extensive criminal record which includes convictions for possession for the purpose of trafficking a Schedule I substance and possession of a Schedule I substance. It is however not clear from the police computer search information when those convictions arose. There is a general statement in the ITO that her criminal convictions date back to 2007. Similarity between the past convictions of the accused and the offences before the court can tend to give the criminal record of the accused some weight in establishing the trustworthiness of the informant. The Ontario Court of Appeal observed:

Accepting that to be so, the cogency of the criminal record depends on its similarity to the criminal activity alleged by the tipster and the age of the record. Here, the appellant was convicted of possession of a prohibited firearm, the very criminal activity the tipster alleged, and that conviction was registered within two years of the anonymous tip. These considerations give the criminal record a fair measure of cogency.

(R. v. MacDonald, para. 23)

[144] I find Ms. T.A.E.’s convictions for drug offences tend to strengthen the informant’s credibility and reliability.

[145] Regarding the informant’s motivation, it was financial gain in exchange for information. For obvious reasons, that circumstance tends not to bode well for an informant’s credibility and reliability. Compounding this is that there is no statement in the ITO as to repercussions to the informant for giving false information. As the defence has pointed out, a host of nefarious and vindictive motives, having nothing to do with promoting the truth, could underlie the reason for accepting money in exchange for giving information about someone else in the drug world.

[146] Although I find the information provided by the informant has features which support the informant’s reliability, on a whole the information related to reliability is not at the highest end of the scale. However, information that is compelling and sufficiently corroborated can bolster the reliability factor.

Is the Information Provided by the Informant Compelling

[147] I find the compelling criterion is the strongest of the factors in this case.

[148] I am entitled to consider the redacted ITO, the unredacted ITO and the Judicial Summary in my assessment of the validity of the warrant: R. v. Brown, [2013] O.J. No. 5954, at para. 37 and R. v. Sahid, 2011 ONSC 979, at para. 29. The unredacted ITO available to the Crown and court contains considerably more detailed information, the final editing in the second draft of the ITO, as I concluded, being necessary to protect confidentiality.

[149] However, I find the Crown Summary, as outlined earlier, considerably enhanced the information available to the defence particularly with respect to page 8, paragraphs 4(d) and (e). Page 7, paragraph 4 provides the specific date the informant provided the information to the police.

[150] I find each of those paragraphs as set out in the Judicial Summary addresses the critical nexus among the criminal, temporal and locational statutory pre-conditions. The summaries in those areas offered a basis from which the defence could mount a challenge to the sufficiency of the warrant.

[151] The unredacted paragraphs 4(d) and 4(e) obviously contain even more detailed and compelling information about what the informant observed at Ms. T.A.E.’s apartment and the location of what they saw. I find the Judicial Summary amply summarizes the nature of the redacted information in those areas.

[152] Further, we know that the search was conducted on March 30, 2015 and that the informant gave information to the police in March 2015 sometime before March 30. So the informant had to have made observations in the apartment in March 2015 and I find this timeframe is within a reasonable time to satisfy the temporal pre-condition.

[153] The compelling nature of this evidence is further strengthened by the police’s success in corroborating some of the evidence.

Is the Information Corroborated?

[154] I find the police sufficiently corroborated the information provided by the informant through their police checks, surveillance and the drug buy call by Officer Canepa. I find that none of the police’s methods of corroboration alone satisfactorily corroborate the information. However, considered together in the context of the totality of the circumstances, I find the corroboration was sufficient.

[155] The biographical information derived from the police search could be regarded as merely innocent public information. Anyone who knows Ms. T.A.E. could know her description, her race, age, height, weight, her hair colour and her residential address and unit number. The surveillance conducted four days before the search was limited to discovering her name on the apartment marquis and learning her buzzer number. This is public information. As the Ontario Court of Appeal commented:

These facts did not address the reliability of the confidential source. They would be known to anyone familiar with the appellant and would not in any way substantiate the allegation that the appellant was involved in drugs.

(R. v. Zammit, [1993] O.J. No. 881, at para. 26, (Ont. C.A.))

[156] Also, surveillance was limited to only one occasion. While it might have been preferable for the surveillance to have been more extensive, I believe in combination with the other investigative measures by the police that the surveillance was adequate. R. v. Debot observed:

In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

(R. v. Debot, at p. 220)

[157] I find in the case at hand that the compelling information given by a known, reasonably reliable informant that was corroborated by the police removes the possibility of innocent coincidence.

[158] For instance, the CAS records were entered into the police database on March 9, 2015 and contain information that confirms the police search information that Ms. T.A.E. has a tattoo “O.E.” on her left wrist. The CAS was investigating an abuse complaint against Ms. T.A.E. with respect to her son O.E..

[159] Also, I find the biographical and residential information combined with the other corroborative information has some value in establishing the informant’s information that it is Ms. T.A.E. who was selling drugs from her apartment and not someone else.

[160] The CAS records note that the grandmother stated that Ms. T.A.E. possessed cocaine in her apartment. The Crown relies on that statement as substantiation that Ms. T.A.E. is a drug dealer. However, I agree with the defence that this information has more prejudicial than probative value. The statement has no factual underpinnings and is, I find, virtually indistinguishable from gossip or rumour.

[161] However, I do give some weight to the drug buy call. It occurred the day before the search. Officer Canepa used the phone number for Ms. T.A.E. obtained from the CAS records. Officer Canepa gave some details about the conversation. He indicated he tried to buy drugs and Ms. T.A.E. refused a sale unless the person who connected him with Ms. T.A.E. vouched for him. The authorizing justice could draw a reasonable inference from this that Ms. T.A.E. was prepared to sell drugs under the right conditions.

[162] It might have been preferable for Officer Canepa to give more details about the contents of the drug-related conversation. It may have been better if he had stated how he knew it was Ms. T.A.E. on the other end of the call. However, I find a reasonable inference could be drawn by the issuing justice based on the call being made to Ms. T.A.E.’s number that she was the recipient of the call.

[163] I find the attempt at a drug buy provides some corroboration just before the search that Ms. T.A.E. was a drug dealer and/or had possession of drugs in her apartment for the purpose of trafficking.

[164] Overall, I find the police adequately corroborated the information provided by the informant so as to justify the execution of the warrant and the search of Ms. T.A.E.’s apartment. The corroboration fortified the compelling detail in the information and the reliability of the informant.

CONCLUSION ON THE SUFFICIENCY OF THE WARRANT

[165] I weighed the three Debot factors. I find on the totality of the evidence that any weakness in the reliability of the informant is compensated by the strengths in the other two factors.

[166] Having regard to the compelling nature of the informant’s information and the reliability of the informant, I am satisfied that together with the police database searches, the drug buy call and surveillance a sufficient foundation existed to support the belief that the crime of drug possession for the purpose of trafficking and possession of criminal proceeds would be in play at the target location at the time the search was conducted.

[167] I find the defence failed to meet its burden to rebut the presumption of the validity of the warrant. On the basis of the record before the court that was not amplified on review, I conclude the authorizing justice could have granted the authorization. I shall not interfere with that decision. The warrant was valid.

[168] On the constitutionality of the search, I conclude the police, having entered Ms. T.A.E.’s apartment on the authority of a valid warrant did not violate Ms. T.A.E.’s s. 8 Charter right to be free from unreasonable search and seizure.

THE TELEWARRANT

[169] Officer Duran obtained a telewarrant to search Ms. T.A.E.’s apartment. The telewarrant was issued on March 29, 2015.

[170] Section 487.1(4) of the Criminal Code provides that “an information submitted by telephone or other means of telecommunication shall include a statement of the circumstances that make it impracticable for the peace officer to appear personally before the justice.”

[171] On the space on the telewarrant where the grounds for requesting the telewarrant are to be provided, Officer Duran wrote: “No Justice of the Peace during weekend hours for the jurisdiction.”

[172] The defence argues that a telewarrant is an exceptional measure. On this view, the defence submits that the availability of a telewarrant must be assessed in relation to time exigencies, the availability of a justice of the peace, and in relation to the urgency of resorting to the exceptional measures of a telewarrant. The affiant must lay the factual foundation for the alleged urgency.

[173] Relying on an Ontario Court of Justice case, the defence further argues that if the statutory pre-requisites for granting a telewarrant are not met then the subsequent search must be deemed warrantless and a contravention of s. 8 of the Charter: R. v. Adansi, 2008 ONCJ 144, [2008] O.J. No. 1202, at para. 74, (Ont. C.J.).

[174] The telewarrant was issued at 10:00 p.m. on March 29, 2015. That was a Sunday night.

[175] The Crown argues Officer Duran provided a written reason for the urgency of a telewarrant, that there are no justices of the peace available on weekends. According to the Crown, his written reason is substantiated by the practical circumstance of the lateness of the hour on a Sunday night.

[176] In addition to the Crown’s point, I note that the drug buy call occurred earlier on March 29 and the search took place on March 30. Based on this, I accept there was some urgency in aiming to execute the warrant as soon as possible after Officer Canepa’s call.

[177] I find in the circumstances that it was impracticable for Officer Duran to have appeared in person given the timeframe within which he was working. I find no breach of the Charter. Even if I were to find the request for the telewarrant did not satisfy the statutory pre-requisites, such a breach would not alone be sufficiently serious to warrant the exclusion of the evidence: R. v. Lao, [2013] O.J. No. 1995 (Ont. C.A.).

SECTION 24(2) OF THE CHARTER

[178] I have found no Charter violations and need not make a determination under s. 24(2) of the Charter.

DISPOSITION

[179] I deny the application. The 65.05 grams of crack cocaine, 65.81 grams of powder cocaine and the $14,500 are admissible at trial.

[180] At the outset of this hearing, defence counsel re-elected trial by judge alone with the consent of the Crown. The hearing proceeded as a blended voir dire. The defence indicated if I ruled the evidence admissible Ms. T.A.E. will accept a guilty verdict and the entry of convictions.

VERDICT

[181] I find T.A.E. guilty on the three counts of possession of cocaine for the purpose of trafficking on counts 1, 2 and 3 on the indictment and guilty of possession of proceeds of crime on count 4 on the indictment. Convictions will be entered accordingly.

“Beth Allen” B.A. ALLEN J. Released: January 13, 2017

COURT FILE NO.: CR-15-90000526-0000 DATE: 20170113 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – T.A.E. Accused REASONS FOR DECISION (Application, Charter s. 8 search warrant admissibility hearing) B.A. ALLEN J. Released: January 13, 2017

[1] A Garofoli application refers to a defence application to exclude evidence collected under a search warrant based on principles enunciated in R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.).