Court File and Parties
COURT FILE NOS.: CR-16-10000322-0000, CR-16-90000313-000 DATE: 20170307 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER ANDRADE and GISELLE DEMPSEY Applicants
Counsel: Stephen Sterling, for the Respondent Leora M. Shemesh, for the Applicant, Christopher Andrade David M. Cohn, for the Applicant, Giselle Dempsey
HEARD: February 22, 24, 27 and March 2, 2017
Thorburn J.
Ruling re Request to Exclude Evidence Pursuant to sections 8 and 24(2) of the Charter
1. Overview
[1] The Applicants, Christopher Andrade (“Mr. Andrade”) and Giselle Dempsey (“Ms. Dempsey”), are charged with possession of illegal drugs for the purpose of trafficking.
[2] On January 2, 2015, Detective Constable Mathew Oliver swore an Information to Obtain a Search Warrant (“ITO”) pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“the Act”). Section 11 of the Act provides for a search warrant to issue when there are reasonable grounds to believe there is a controlled substance or evidence of a controlled substance in a given place.
[3] A reasonable belief that the requisite statutory grounds exist is enough to grant an authorization. [1]
[4] On January 2, 2015, Justice Zuker of the Ontario Court of Justice issued warrants to search 523F Royal York Road, Toronto and 23 Goldwin Avenue, Toronto. These were the addresses listed by the Applicants as their addresses on their respective MTO driver’s licences. The warrants were issued on the basis of the ITO sworn by Detective Constable Oliver.
[5] The warrants were issued to search and seize controlled substances, packaging used for trafficking narcotics, weight scales, proceeds of crime, and photographs, film, written data or data storage units including cellphones and computers.
[6] On January 3, 2015, police searched 523F Royal York Road. They entered the residence using a key seized from Mr. Andrade’s person upon his arrest. They found $13,925 and just under 13 grams of cocaine in the master bedroom closet, and marijuana and documents, including a TD bank document, in Mr. Andrade’s name in a basement closet.
[7] Also on January 3, 2015, police conducted a search at 23 Goldwin Avenue. In a bedroom where the door was marked with a decorative “G”, police found evidence of female occupancy as well as three pieces of personal identification for Ms. Dempsey, 526 grams of cocaine in a purse next to the bed, and a digital scale in another purse next to the bed.
[8] The Applicants take the position that there were insufficient grounds for the Ontario Court Judge to issue the warrants and that as a result, the searches were in breach of their right to be free from unreasonable search and seizure, protected by s. 8 of the Canadian Charter of Rights and Freedoms. As such, they seek to have all of the evidence from the search excluded pursuant to s. 24(2) of the Charter.
[9] For the reasons that follow, the Application is denied.
2. The Role of the Reviewing Judge
[10] Section 11 of the Act provides that a search warrant may be issued if the court is satisfied that there are reasonable grounds to believe evidence of a criminal offence will be found at a specified location. [2]
[11] Where a search warrant has been authorized, the role of a reviewing court is limited. The reviewing judge does not substitute his or her view for that of the authorizing judge. “[T]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.” [3] The onus is on the applicant to establish that the search warrant could not have been issued and is therefore invalid. [4]
[12] The reviewing judge must appreciate that the justice who issued the search warrant made the decision based upon the contents of the ITO as a whole, drawing reasonable inferences from its contents. [5] Moreover, warrants are usually drafted by police officers without the benefit of legal advice. Therefore, some latitude should be accorded to the drafter of an ITO. [6]
[13] Inaccuracies in an ITO, alone, are “not a sufficient basis on which to ground a finding of bad faith or an intent to mislead”. [7]
[14] At the same time, a police officer drafting an ITO must make full and frank disclosure in proceedings where no notice is given to the other side. The affiant must therefore avoid making inaccurate statements or exaggerated assertions that are likely to mislead the reviewing justice. The authorizing judge must look at the affidavit material with an awareness that constitutional rights are at stake. [8]
[15] The affiant’s reasonable belief does not have to be based on personal knowledge, but the ITO must disclose a substantial basis for the existence of the affiant’s belief. [9]
[16] Where the affiant relies on information obtained from a confidential informant (“CI”), the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. [10] Factors to be considered include:
(a) the degree of detail of the “tip”;
(b) the informer’s source of knowledge; and
(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. [11]
[17] Errors in the ITO must be excluded from consideration on the review. [12]
[18] Weaknesses in one area of the ITO may be compensated by strengths in another. [13] The essential question to be asked is whether the record contains reliable evidence that might reasonably be believed and on the basis of which the warrant could have been issued. This need not be proof on a balance of probabilities.
[19] The affidavit is assessed based on what the affiant knew or ought to have known, not whether the information is in fact true. [14]
3. The Step Six Process
[20] Where a reviewing judge determines that the redacted version of an ITO does not reveal grounds upon which a judge could be satisfied that there were reasonable grounds to search, the Crown may seek to have the validity of the warrant confirmed based on the original unredacted ITO.
[21] In such cases, the Crown should,
…apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with “a judicial summary of the excised material” to attempt to ensure “the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”[.] [15]
[22] The summary of the redacted portions of the ITO provided to the applicant must render the applicant sufficiently aware of the nature of the excised material that the applicant can challenge the redacted portions in argument or by evidence. [16] A judicial summary will thereby assist the applicant to exercise his/her right to make full answer and defence. [17] This process is often referred to as the “step six” procedure outlined in R. v. Garofoli. [18]
[23] At step six, the details about the CI that will satisfy the requirements for issuance of an ITO are often contained in the redacted portions of the ITO. Where this is the case, an applicant can challenge whether the details are compelling, credible and corroborated by highlighting areas that have been omitted, attacking the steps taken (or lack of same) to corroborate the information received from the CI, and make arguments in the alternative and on general principles of informer reliability. [19]
[24] In R. v. Crevier, the Court of Appeal held that in preparing or approving the summary, the trial judge should consider whether the summary ought to indicate that the redacted material includes the following types of information:
- The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay)
- The informer’s relationship with/to the accused and how they first came into contact
- The length of time the informer has known the accused and the frequency of contact between them
- Whether the informer has previously provided information to police
- Whether previous information provided (if any) has led to arrests, seizures, or convictions
- Whether past information provided by the informer has ever been proven unreliable or false
- Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended
- Whether the informer has convictions for offences of dishonesty or against the administration of justice
- The informer’s motivation for speaking to police, including whether consideration was sought or arranged
- Whether the informer was instructed on the penalties for giving false information
- Whether descriptions provided by the informer match the accused or the target location
- The degree of detail of the information that the informer provided to police
- The recency or timing of the information that the informer provided to police
- Any discrepancies between the information of one informer and another
- Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility
- Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors) [20]
[25] The unredacted material must:
a) enable an applicant to fairly and fully challenge any search as unreasonable [21]; and
b) allow the limited review by a reviewing judge to proceed on the basis of the same information that was before the issuing judge, to the extent possible.
[26] However, the right to make full answer and defence does not include the right to require the Crown to share information that may compromise the identity of a CI. [22]
[27] While the aim is to release as much information to the accused as possible while protecting the identity of the CI, there is no perfect editing process. “Any redaction is imperfect. Reasonable people may disagree as to what information will tend to reveal a person’s identity.” [23] Inferences of criminal conduct and recovery of evidence must be reasonable and, where police rely on information provided by a CI, consideration must be given as to whether the information is compelling, credible and corroborated.
[28] Once the reviewing judge decides that the accused is sufficiently aware of the nature of some or all of the redacted information, the reviewing judge can assess the adequacy of the ITO with the help of the unredacted information in the ITO. [24]
[29] Where the accused cannot directly challenge those portions of the ITO that were redacted and that support the warrant’s issuance, the reviewing judge must consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions. In assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether it was susceptible to cross-examination. [25]
4. Information Provided on This Application to Proceed with a Step Six Procedure
[30] Prior to hearing this Application, the Applicants were given a heavily redacted version of the ITO. The affiant stated that the information in support of the ITO originated from a CI, police databases, and corroboration of some of that information by the police.
[31] Crown counsel advised that, but for a few minor exceptions, the redactions were made to protect the identity of the CI.
[32] The Crown conceded that the redacted version of the ITO did not reveal reasonable grounds to search the two locations. The Crown therefore sought to have the validity of the warrants confirmed based on a review of the original unredacted ITO.
[33] The parties made submissions to the Court as to what further information should be provided to the Applicants. Thereafter, the Court provided Crown counsel with further information the Court considered could and should be disclosed to the Applicants (bearing in mind that any information that might tend to identify a CI should be excluded). Crown counsel made further submissions to explain why some of that information could not be provided as it might tend to identify the CI.
[34] The Crown filed a fifth and final redacted version of the ITO that disclosed further information in the ITO and additional comments regarding the redacted portions of the ITO. A judicial summary was provided to defence counsel based in some respects on a draft prepared by the Crown that was amended by the Court after hearing submissions of counsel. The Crown advised that no further information could be disclosed as it might tend to disclose the identity of the CI.
[35] The fifth and final redacted version of the ITO, including comments regarding the redactions, together with the judicial summary, protect informer privilege while making the Applicants sufficiently aware of the nature of the information to enable them to respond to the issue of whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.
[36] In addition, counsel for the Applicant, Mr. Andrade, cross-examined the affiant and the Applicants were provided with the preliminary inquiry transcripts, vetted notes of the CI’s police handler, Detective Constable Racette, and notes of each of the officers who conducted police surveillance of any of the Applicants from December 8 through December 20, 2014.
[37] In view of the fact that the Applicants are sufficiently aware of the nature of the redacted information such that they can challenge it, I will proceed to assess the adequacy of the ITO with the help of the unredacted ITO.
5. The Remaining Issues to Be Decided
[38] It is conceded that the Applicants have standing to bring this Application.
[39] The issues to be decided are:
(i) Whether the warrants could have been issued; and
(ii) If there was a breach of the Applicants’ right to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter, whether the evidence obtained in breach of the Applicants’ s. 8 Charter rights should be excluded from the trial on the ground that to do otherwise would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter.
6. Analysis of the Issues
[40] Inferences of criminal conduct and recovery of evidence must be reasonable and, where police rely on information provided by a CI, consideration must be given as to whether the CI is credible and reliable, the information is compelling, and/or whether the information has been corroborated, bearing in mind that weaknesses in one area may be compensated by strengths in the other two. [26]
Credibility and Reliability of the CI
[41] The redacted ITO and summary provide the following information about the CI’s credibility and the reliability of the information provided to police by the CI:
a) The CI provided information to the police on multiple occasions in the past and is a carded informant.
b) The CI has not received consideration for the information provided and was told by police that s/he would not receive any consideration unless the information was acted on and proven reliable and fruitful.
c) The CI was cautioned about the importance of providing truthful information, and the adverse consequences if the information provided to police was not truthful or accurate;
d) The CI’s information was “successfully used by police” in the past and, on each such occasion, “the confidential informer was proven reliable by providing accurate information.” The Applicants were advised that the specific results from receipt of information from the CI on past occasions were set out in the unredacted ITO.
e) There is no evidence that the CI ever misled police or that the information s/he provided in the past was proven unreliable or false.
f) Some of the information provided by the CI was firsthand and some was corroborated by the police. The unredacted ITO indicates where information is firsthand and where it is not.
g) “The [CI] is connected to the criminal underworld and is in a position to provide the kind of information provided.”
h) “If the source had a criminal record, the nature of the record was appended for review by the issuing judge.”
i) The timeframe within which the CI obtained the information and the time when the information was disclosed to police, are set out in the affidavit. Specific dates and locations were provided in the unredacted ITO.
j) The CI was unwilling to testify and would only provide information on condition of anonymity.
[42] There was a mistake made by the affiant in the ITO in respect of information regarding the CI’s motivation and I am satisfied that to the extent that the inaccurate information was relied on by the issuing judge, reliance on that information would have rendered it more difficult to obtain authorization. This information was excised.
[43] On the basis of the above, I find that the information about the CI and the CI’s past supports the conclusion that the CI was both credible and reliable.
Drug Trafficking
[44] The redacted ITO and summary also contain information from the CI regarding each of the Applicants’ involvement in alleged ongoing drug trafficking. This information includes the following:
a) The CI identified the specific type(s) of drug(s).
b) The CI provided detailed information about alleged drug trafficking on the part of each of the two Applicants in specific locations and on specific dates, all of which were within a reasonable time of issuance of the warrants.
c) All of the information was noted as either firsthand or hearsay.
d) The CI outlined the relationship with each of the Applicants and how they knew one another.
e) The CI identified both Applicants from their most recent MTO photographs.
[45] Counsel for the Applicant, Mr. Andrade, argued that the fact that Mr. Andrade was charged with drug trafficking several years before, which information was also included in the ITO, should be excised as those charges were withdrawn. I agree that the fact that there were earlier charges that were withdrawn should not form part of the evidence in support of alleged criminal activity on the part of Mr. Andrade. That information should therefore be excised.
[46] Mr. Andrade’s counsel also took the position that the police attempted to mislead the issuing judge as on the first reference in the affidavit to police surveillance of 1901 Weston Road, the affiant states that the police notes of Detective Constable Brind’amour indicate that “Christopher Andrade was observed exiting the north east door of 1901 Weston Road carrying a dark bag”, while on the second reference to this surveillance, the affiant indicates that Detective Constable Racette observed the surveillance video of this same encounter and noted that “Christopher Andrade was observed entering the building through the north east doors … carrying a black ‘lunch bag’. He met with an older male …. [This] unknown male looked similar to Jose Andrade.”
[47] Mr. Andrade’s counsel suggests that the fact that these two entries are different from one another is evidence that the police were trying to mislead the issuing judge by suggesting that Mr. Andrade was involved in criminal activity when this was just an innocent meeting between Mr. Andrade and his father, Jose Andrade, while Mr. Andrade was carrying a lunch bag.
[48] I do not agree. Jose Andrade is listed in the affidavit as one of the suspects and has nine criminal convictions that include impaired driving, assault, utter threats and theft. Secondly, no one positively identified Jose Andrade. The surveillance officer simply said that he “looked similar” to Jose Andrade. Thirdly, Detective Constable Brind’amour did not state that Mr. Andrade was carrying on a drug transaction. Most importantly, both sets of observations were provided to the issuing judge. I do not believe that the differences in the notes made by Detective Constable Brind’amour at the time of the surveillance and those made by Detective Constable Racette upon reviewing surveillance footage are materially different or that the differences are indicative of any effort to mislead the issuing judge.
[49] Detective Constable Miles, the officer in charge of the case, testified on cross-examination at the preliminary inquiry that “[n]othing criminal was observed by officers conducting surveillance of Ms. Dempsey” such that police could corroborate the detailed information relating to drug trafficking provided by the CI. Counsel for the Applicant, Mr. Andrade, indicated that there is no evidence from the surveillance to confirm any criminal behaviour on the part of Mr. Andrade. I agree that there is a lack of police corroboration of the CI’s information that the Applicants were involved in alleged criminal activity. However, the lack of police corroboration of criminal activity on the part of each Applicant is made up for by the fact that the CI was credible and reliable and provided detailed information including dates, locations, and circumstances and indicated whether the information was firsthand or not. Moreover, while there was no corroboration of the alleged criminal activity, there was police corroboration of other details offered by the CI. [27]
[50] In the totality of the circumstances, including the CI’s credibility and reliability, the detailed information provided by the CI about each of the Applicants’ involvement in drug trafficking, and the source of his/her knowledge, satisfy me that the record contains reliable evidence that might reasonably be believed that each of the two Applicants was engaged in drug trafficking within a reasonable time of the execution of the search warrants.
Connection of Alleged Trafficking by These Applicants to the Location(s) to Be Searched
[51] The Applicants further submit that there is no evidence referred to in the ITO of a controlled substance in either of the two locations to be searched within a reasonable time of the search, and there is no evidence of a connection between these two locations and drug trafficking by either Applicant.
[52] The Crown conceded that the information regarding nighttime execution of the warrants should be excised.
[53] The redacted ITO and summary contain the following information about each of the Applicants and the locations to be searched:
a) On their MTO licences, Mr. Andrade and Ms. Dempsey set out their respective addresses as the two locations searched.
b) On December 19, 2014, approximately two weeks before executing the search warrants, police observed Mr. Andrade coming and parking his vehicle in the rear parking lot behind 523F Royal York Road.
c) On December 8, 2014, Ms. Dempsey’s vehicle was parked in the driveway of and she was later seen leaving 23 Goldwin Avenue.
d) The CI provided specific dates and locations of drug trafficking in respect of each of the two Applicants, specific circumstances as well as specific information as to the CI’s relationship with each of the two Applicants. The CI also provided “some assistance to police in identifying the addresses searched.”
[54] In the circumstances, given the credibility and reliability of the CI, the CI’s specific detailed information of drug trafficking at specific locations on specific dates, the clear indication as to whether the information from the CI was firsthand, and the corroboration of other details by police surveillance, taken together, satisfy me that the record contains reliable evidence that might reasonably be believed that each Applicant was engaged in drug trafficking at the address listed as their residence on their current MTO licence.
7. Summary of Conclusions
[55] A search warrant may be issued if the court is satisfied that there are reasonable grounds to believe evidence of a criminal offence will be found at a specified location. The onus is on the Applicants to establish that the search warrants could not have been issued and are therefore invalid.
[56] The role of a reviewing court is limited, as the reviewing judge does not substitute his or her view for that of the authorizing judge.
[57] In this case, there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. The CI was credible and reliable and provided detailed and specific evidence of drug trafficking including dates and locations in respect of each of the Applicants. None of the information the CI provided was found to be unreliable. Taken together, this supports a reasonable inference that the authorization could have issued.
[58] Moreover, police investigation into the information that was provided by the CI confirmed the accuracy of certain aspects of that information, which further enhances the credibility and reliability of the information provided by the CI. Information from a CI that a crime was committed need not be corroborated before the CI’s information can be relied on.
[59] For these reasons, based on the record before the issuing judge, there were reasonable grounds upon which the search warrants could have been issued.
[60] For the above reasons, I find that the warrants could have been issued. The Application to quash the judicial authorizations and exclude the evidence obtained during the searches on the basis that there were no reasonable and probable grounds to authorize the search is therefore denied.
Thorburn J. Released: March 7, 2017
Footnotes
[1] R v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para 65.
[2] R. v. Morris (1998), 1998 NSCA 229, 173 N.S.R. (2d) 1, cited to 134 C.C.C. (3d) 539 (C.A.), at pp. 549-50.
[3] R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, quoting R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (original emphasis omitted).
[4] R. v. Morelli, supra note 3, at paras. 39-43; R. v. Garofoli, [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161, at p. 1452; R. v. Bisson, [1994] 3 S.C.R. 1097, 94 C.C.C. (3d) 94, at p. 1098; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 37-38, 83 and 88; R. v. Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d) 213, at para. 3.
[5] R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Evans, 2014 MBCA 44, 306 Man. R. (2d) 9, at para. 10; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; R. v. Whitaker, 2008 BCCA 174, 254 B.C.A.C. 234, at paras. 41-42; R. v. Sadikov, supra note 4, at para. 82.
[6] Re Lubell and The Queen (1973), 11 C.C.C. (2d) 188, [1973] O.J. No. 179 (H.C.J.), at pp. 190-91; Re Times Square Book Store and The Queen (1985), 21 C.C.C. (3d) 503, 48 C.R. (3d) 132 (Ont. C.A.), at p. 512; R. v. Sanchez (1994), 20 O.R. (3d) 468, 93 C.C.C. (3d) 357 (Gen. Div.), at pp. 476-77; R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at paras. 57-58.
[7] R. v. Sadikov, supra note 4, at para. 87.
[8] R. v. Araujo, supra note 3, esp. at paras. 29 and 46-47.
[9] R. v. Yorke (1992), 77 C.C.C. (3d) 529 (N.S.C.A.), affirmed R. v. Yorke, [1993] 3 S.C.R. 647.
[10] R. v. Garofoli, supra note 4, at pp. 1456-57.
[11] R. v. Garofoli, supra note 4, at p. 1457.
[12] R. v. Araujo, supra note 3, at paras. 56-59; R. v. Morelli, supra note 3, at paras. 41-43.
[13] R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1168.
[14] R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41.
[15] R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 55, citing R. v. Garofoli, supra note 4, at p. 1461.
[16] R. v. Crevier, supra note 1, at para. 43.
[17] R. v. Crevier, supra note 1, at paras. 43, 70-78.
[18] R. v. Garofoli, supra note 4.
[19] R v. Crevier, supra note 1, at paras. 68, 76-77.
[20] R. v. Crevier, supra note 1, at para. 84.
[21] R. v. Garofoli, supra note 4, at p. 1461.
[22] R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at paras. 15-17; R. v. Leipert, [1997] 1 S.C.R. 281, 143 D.L.R. (4th) 38.
[23] XY v. United States, 2013 ONCA 497, 116 O.R. (3d) 548, at para. 12.
[24] R. v. Crevier, supra note 1, at para. 88.
[25] R. v. Crevier, supra note 1, at para. 88.
[26] R. v. Debot, supra note 13, at p. 1168.