Court File and Parties

COURT FILE NO.: 4090/13 DATE: 2017/01/13

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

Her Majesty the Queen Respondent

Peter B. Wenglowski, for the Respondent

• and -

James DiBenedetto Applicant

Steven M. Fishbayn, for the Applicant

APPLICATION HEARD at Welland, Ontario: September 15 & 16, 2016 and November 14, 2016

The Honourable Justice T. Maddalena

DECISION ON CHARTER APPLICATION

INTRODUCTION

[1] This is an application on behalf of Mr. James DiBenedetto (“the applicant”) seeking to quash the issuance of two search warrants on the grounds that the warrants were issued without reasonable and probable grounds in violation of the applicant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms.

[2] Further, the applicant seeks an order pursuant to s.24(2) of the Charter excluding from the applicant’s trial all evidence seized pursuant to the two warrants.

[3] The Crown submits that there is no violation of s.8.

[4] Police, according to the Crown, lawfully searched 85014 Creek Road, Wainfleet and 49 Foresthill Crescent, Fonthill pursuant to two judicially authorized warrants.

[5] The Crown further submits that in the event this court determines that the applicant’s rights under s.8 of the Charter have been infringed or denied, the evidence should be admitted under s.24(2) of the Charter.

[6] Further, in the alternative, the Crown submits that if this court rules that the redacted version of the information to obtain (“ITO”) is found to be insufficient to support the search warrants, then the Crown requests that the trial judge review the excised material in the ITO pursuant to step 6 of Garofoli.

THE FACTS

[7] The applicant James DiBenedetto is charged that on or about January 15, 2011 he committed the offences of production of methamphetamine, possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime.

[8] The Crown relies on evidence seized pursuant to two search warrants dated January 15, 2011 from a rural property located at 85014 Creek Road, Wainfleet and a residential property located at 49 Foresthill Crescent, Fonthill, Ontario.

[9] On January 13, 2011 Det. Jay Howe (“the affiant”) of the Niagara Regional Police Service swore an information to obtain search warrants for 85014 Creek Road, Wainfleet, Ontario (a barn) and 49 Foresthill Crescent, Fonthill (a residence).

[10] This warrant was granted, but expired before it could be executed.

[11] A subsequent application on January 14, 2011 was refused by the reviewing justice for “insufficient grounds”.

[12] On January 15, 2011, after changes and additions to the ITO were made, search warrants were granted for both properties by Justice of the Peace Douglas Clark.

[13] Inside the barn police located a methamphetamine lab and inside the residence police recovered $53,000 in Canadian currency, as well as numerous publications referencing drugs and how to manufacture them.

[14] The ITO was based on information provided to police by five confidential informants (“CIs”) and police surveillance on: November 10, 22 & 30, 2010, December 1 & 2, 2010, and January 4, 11, 13, 14 & 15, 2011.

[15] The ITO also includes information from various police reports, other investigative tools, as well as providing information based on police officers’ training and experience.

[16] Further, a judicial summary of the ITO redactions was provided (steps 3 and 4 of Garofoli) and made court exhibit #4 in a prior application.

[17] These proceedings are now at step 5 of Garofoli.

SUMMARY OF INFORMATION RE: THE FIVE CIs

CI#1

[18] According to the ITO, the identity of CI#1 is known to the affiant.

[19] In early November 2010 CI#1 provided information to Sgt. Frank Mossuto (“Mossuto”) of the Hamilton Police Service Drug Unit that “James Di Benedetto was involved in methamphetamine production and that his son Mike had problems with the police.” The above information was conveyed to Det. Howe (“Howe”) by Mossuto.

[20] Further, in late November 2010, Mossuto provided further information to Howe, which came from CI#1, that James DiBenedetto was involved in methamphetamine and heroin production.

[21] On January 5, 2011 Mossuto met with CI#1 and was advised by CI#1 that “James DiBenedetto lost respect in the underworld because he has been supplying his sons with drugs and let them take the fall for it”.

[22] On January 5, 2011 CI#1 also advised Mossuto that James DiBenedetto is the actual drug dealer.

[23] Appendix “B” of the ITO describes CI#1 as one who is not very well known to police for criminal activity.

[24] In Appendix “B” of the ITO, CI#1 made further reference to James DiBenedetto as follows:

• He is behind methamphetamine production;
• He owns an old CN railway building in Fort Erie;
• He is from Thorold;
• He has a son named Mike who has been in trouble with police.

CI#2

[25] According to Howe’s affidavit sworn April 4, 2016, Det. Howe is the handler for CI#2.

[26] In early November 2010 Howe met personally with CI#2. CI#2 advised that James DiBenedetto lives at 49 Foresthill Crescent, Fonthill with Jason Barr and with his (DiBenedetto’s) daughter. CI#2 advised Howe that Jason Barr used to be a cocaine dealer.

[27] CI#2 further advised that James DiBenedetto owns a lot of property in Niagara, including a farm in Wainfleet. CI#2 also makes some reference to the presence of cocaine in the house at 49 Foresthill Crescent.

[28] CI#2 also stated that James DiBenedetto drives a newer silver Mercedes car, a Dodge Ram truck, and a Porsche.

[29] CI#2 also stated that James DiBenedetto is “heavyset and keeps his hair in a ponytail. His son Mike got caught with heroin not long ago.”

[30] Appendix “B” of the ITO states that CI#2 is not well known to police.

[31] The ITO also states that CI#2 met James DiBenedetto “several years ago” and referenced that “DiBenedetto had people over at his home at 49 Foresthill Crescent in Fonthill, including Ricky Ward … a lot of bikers and others.” CI#2 further stated to Howe that James DiBenedetto hides ownership of his properties in the name of his sister, Mary Powley, who also resides in Fonthill.

[32] In the heavily redacted ITO, there is reference under CI#2 to “bundles of cash around the house” and a reference to “actively trafficking drugs now”. There is also a reference that “his son Mike that got caught with heroin used to live at his house”.

[33] There is also reference with respect to CI#2 in Appendix “B” among the heavy redactions in the ITO that “inside of the house is a huge mess and he keeps money in the house”.

CI#3

[34] In July 2009 CI#3 provided information to Constables James and Koole.

[35] From paragraph 29 of the ITO it appears that the information provided by CI#3 is both from firsthand observation and also hearsay from other members of the heroin subculture.

[36] CI#3 advised that heroin traffickers known to them get heroin from Fonthill and that “Mike DiBenedetto is a large player in heroin trafficking”.

[37] The ITO states that CI#3 is a self-admitted heroin addict.

[38] CI#3 has provided detailed and intimate information about the heroin subculture in Niagara.

[39] Further, the identity of CI#3 is not known to the affiant. CI#3 also revealed that a heroin trafficker named “Shawn” would attend regularly at a home in Fonthill to get heroin.

[40] It is the belief of CI#3 that Mike DiBenedetto is supplied heroin by his father who also lives in Fonthill.

CI#4

[41] CI#4 provided information to Det. Martin Cook in August 2009. CI#4 is a self-admitted member of the heroin subculture in Niagara.

[42] The ITO further states that information from CI#4 has been sourced in several search warrants in which drugs and property were seized and persons were arrested. Det. Cook considered CI#4 to be reliable and credible.

[43] CI#4 advised that Mike DiBenedetto received heroin from his father in Fonthill.

CI#5

[44] In February 2007 Det. Martin Cook received information from CI#5. This CI is a self-admitted member of the Niagara region drug subculture.

[45] CI#5 advised Det. Cook that James DiBenedetto Jr. was trafficking in large amounts of methamphetamine and that his brother Michael DiBenedetto is also a large-scale drug dealer. CI#5 further stated that James DiBenedetto Jr. was in possession of methamphetamine and that he was trying to introduce it to the St. Catharines area.

SUMMARY OF POLICE SURVEILLANCE

[46] Police surveillance took place on November 10, 11, 22 and 30, 2010, December 1 and 2, 2010, January 4, 11, 13, 14 and 15, 2011.

November 10, 2011 Surveillance

[47] A Dodge Ram pickup was observed in the driveway of 49 Foresthill Crescent, Fonthill. This Dodge Ram was registered to James DiBenedetto’s numbered corporation 1492232 Ontario Limited.

[48] Shortly after 2:30 p.m., Jason Barr exited the home at 49 Foresthill Crescent, Fonthill, placed heavy bags into the back seat of the Dodge Ram truck, and then went back into the home at 49 Foresthill Crescent.

[49] At 3:11 p.m. Jason Barr exited the home, put “something” into the front passenger seat area of the truck, got into the driver’s seat, and left 49 Foresthill Crescent.

[50] Also on November 10, 2010, surveillance was being conducted on the farm at 85014 Creek Road, Wainfleet.

[51] There, after dark, a vehicle was observed parked near the northwest barn. An unidentified person exited the truck and entered the barn, remaining there for three hours, at which point surveillance was terminated.

Surveillance of November 11, 2010

[52] Surveillance on November 11, 2010 noted that no vehicles were observed at 49 Foresthill Crescent, Fonthill.

[53] Surveillance also noted that James DiBenedetto’s Dodge Ram truck was located at 85014 Creek Road, Wainfleet parked by the northwest barn in the exact spot where the unidentified vehicle had parked the night before.

[54] Surveillance noted that Jason Barr exited the northwest barn on three occasions.

[55] At 6:31 p.m. police observed Jason Barr exit the barn, approach a fire barrel on the north side of the barn, and burn an unknown substance.

[56] The ignition of the unknown substance was intense and immediate, and flames were orange, yellow, green and blue in colour.

[57] Surveillance also noted that while there was a house located on the property, there did not appear anyone in or around the house and there did not appear to be any curtains hanging on the windows. The house did not appear to be occupied.

November 22, 2010 Surveillance

[58] Police surveillance noted at 1:22 p.m. that the applicant’s Dodge Ram truck was backed into the driveway at the residence at 49 Foresthill Crescent, Fonthill, with a large enclosed trailer behind it.

November 30, 2010 Surveillance

[59] At 12:47 p.m. on the 30th of November 2010, surveillance at 49 Foresthill Crescent, Fonthill revealed that a silver Mercedes car was parked in the driveway. A PARIS police check revealed that the car was registered to the applicant of 49 Foresthill Crescent, Fonthill and also to Pierina DiBenedetto, the applicant’s mother, of 89 Collier Road South, Thorold.

[60] Surveillance further confirmed that at 1:12 p.m. the applicant arrived at the house at 49 Foresthill Crescent driving the Dodge Ram truck. The applicant walked around the driveway in the area of the Mercedes vehicle, then got back into the Dodge Ram and drove away.

[61] Later at 1:38 p.m. surveillance revealed that the applicant arrived at the farm at 85014 Creek Road, Wainfleet, and parked by a trailer near the northwest barn. He was joined by another male, identified as Jason Barr, who came out of the northwest barn. They were in and out of the northwest barn, and a short time later they both left in the truck. They drove direct to 49 Foresthill Crescent, Fonthill.

[62] At this time Barr removed from the truck a large heavy blue bag and a plastic clothes bin container and brought them into the house at 49 Foresthill Crescent.

[63] A short time later, the applicant left the home and was followed to a Bank of Montreal branch in Thorold. He later returned home.

December 1, 2010 Surveillance

[64] Surveillance on December 1, 2010 revealed that the applicant’s Dodge Ram truck and Mercedes were in the driveway at 49 Foresthill Crescent, Fonthill. Surveillance further revealed that the applicant drove his young daughter to school on that day, he further visited his son in Niagara Falls, and was observed visiting his mother who resided in Thorold.

[65] The applicant was further observed attending at the Bank of Montreal in Thorold at 10:36 a.m. Further, at 11:56 a.m. he was observed attending at the Royal Bank in Dunnville. On that day he attended several other places including a return to the Royal Bank in Dunnville at which time surveillance was terminated.

Surveillance of December 2, 2010

[66] Surveillance on December 2, 2010 again revealed both the Dodge Ram truck and Mercedes vehicle in the driveway of 49 Foresthill Crescent, Fonthill.

[67] The applicant was observed removing a red gym bag from the trunk of the Mercedes and placing it in the truck cab. He was also observed removing a backpack from the car and placing it in the truck. He was observed driving his young daughter to school.

[68] From approximately 8:30 a.m. until 1:18 p.m. the applicant was observed attending at various places including Berkwood Industries in Welland for a brief time, then Tom’s Tool and Die shop in Welland for a brief period of time, as well as attending his vacant property at 260 Hwy. 20 Fonthill and his vacant property at 337 Hwy. 20, Fonthill. At 11:48 a.m. he attended the location of Rosehill Auction in Fort Erie for a brief time and then attended at a residence at 1976 Ridge Road in Ridgeway.

[69] By 2:06 p.m. the applicant was seen arriving at 85014 Creek Road, Wainfleet, backing up his truck in the northwest barn, and seven minutes later the applicant left.

[70] It was noted in the surveillance that he did not attend or check on any other building on the premises at 85014 Creek Road, Wainfleet, other than the barn.

January 4, 2011 Surveillance

[71] Surveillance revealed that at 9:30 a.m. the applicant’s Dodge Ram truck was parked at 49 Foresthill Crescent, Fonthill.

[72] At 10:15 a.m. the affiant was in the area of the farm property at 85014 Creek Road, Wainfleet. The affiant noticed an undisturbed blanket of snow could be observed on the property and the long side road leading to the farm indicating no one had been there since the snow had fallen.

[73] At 10:41 a.m. the applicant was followed in his Dodge Ram truck to the Meridian Credit Union on Pelham Road in Fonthill.

[74] The applicant was also followed to Sam Adelstein & Co. scrap yard on Welland Avenue, St. Catharines. The truck was parked there for approximately half an hour and the applicant later left.

[75] By 12:53 p.m. the applicant had arrived at an establishment in Niagara-on-the-Lake and had lunch. Further, at 2:00 p.m. the applicant had arrived at “My Place” bar in Fonthill and met with two unknown males. It was noted that the applicant left the bar at 3:13 p.m. and was followed home, at which time surveillance was terminated.

January 11, 2011 Surveillance

[76] Surveillance noted at 10:28 a.m. that a black car with two young males pulled into the driveway at 49 Foresthill Crescent in Fonthill. The two young males left a few minutes later.

[77] At 10:54 a.m. the applicant arrived at the house in the Dodge Ram. He went into the home and left shortly thereafter at 11:08 a.m.

[78] Further, surveillance revealed that he arrived at Silvan Court (misspelled “Sylvan” in the ITO) in Welland where he picked up his son Michael DiBenedetto and drove to the Rosehill Auction Centre in Fort Erie. They then left the Rosehill Auction Centre followed by a second pickup truck driven by one Joey Passero. Surveillance observed that all three went to the South Coast Bar and Grill in Crystal Beach, where they went inside the restaurant. Later all three left the bar, shook hands on the sidewalk, and each returned to his respective vehicle.

[79] Michael DiBenedetto was driven home to 34 Silvan Court in Welland. James DiBenedetto, the applicant, continued to My Place Bar and Grill in Fonthill where he sat with an unknown male and discussed an individual by the name of Bob Dick.

[80] The applicant then drove the unknown male to 56 Merritt Road, Fonthill. He then picked up his daughter and went to 49 Foresthill Crescent in Fonthill. The surveillance noted that throughout the entirety of the surveillance the applicant was talking and messaging on his electronic device.

January 13, 2011 Surveillance

[81] On January 13, 2011 surveillance was conducted at 85014 Creek Road, Wainfleet.

[82] At 12:16 p.m. police observed a silver Dodge Magnum car backed up to the northwest barn. Jason Barr was later found to be the registered owner of this vehicle.

[83] At 12:46 p.m. some “sort of exhaust” was running from the area of the east end of the barn.

[84] By 13:48 p.m. police surveillance observed footprints in the snow from the barn to the fire pit located on the north side of the barn (where a prior chemical burn was suspected). This indicated that the fire pit had been in use since the previous snowfall.

[85] Based on tire tracks in the snow leading to the property, it appeared that the car had been parked at the barn overnight. There were no tracks in the snow indicating anyone went to the house.

[86] By 2:40 p.m. police surveillance indicated that Jason Barr had exited the northwest barn and was in the area of the Dodge Magnum. By 3:10 p.m. Barr was back in the northwest barn. However, by 3:58 p.m. Barr had exited the barn carrying a large blue bag. He carried this bag to the house on the property, entering through a side door which he unlocked with the key.

[87] By 5:45 p.m. Barr exited the barn, walked over to the fire pit on the north side of the barn, and ignited a fire that burned for approximately five minutes.

[88] By 6:01 p.m. Jason Barr left the farm in the Dodge Magnum. At 6:42 p.m. Barr arrived at Food Basics on Thorold Road in Welland, and by 7:05 p.m. Barr came out of the store with a box of food and entered the Dodge Magnum vehicle. By 7:39 p.m. Barr arrived back at 85014 Creek Road and backed the car again inside the northwest barn. Barr remained inside the barn and a short time later police could observe that there were lights on inside the barn building.

[89] Surveillance was maintained throughout the night of January 13, 2011. Jason Barr did not leave the barn and the lights were visible in the barn throughout the night.

[90] Surveillance continued on the morning of January 14, 2011 at 85014 Creek Road, Wainfleet. Throughout the day no one exited the northwest barn or attended the property. Jason Barr’s Dodge Magnum vehicle remained at the barn.

[91] By 3:35 p.m., while police were conducting surveillance, Det. Schaefer was approached by a resident of the area who described 85014 Creek Road, Wainfleet as “the red barn”.

[92] The resident wished to remain anonymous and advised that the resident did not know anyone at the farm but that area residents were suspicious of activities there over the past couple of years.

[93] Further, surveillance then noted that Jason Barr left the area of the northwest barn and walked around the area of the barn using a flashlight.

January 14/15, 2011 Surveillance

[94] Throughout the night of January 14/15, 2011 police maintained surveillance of 85014 Creek Road, Wainfleet.

[95] By 10:00 p.m. on January 14, 2011 Jason Barr came out of the barn with the flashlight and went back inside.

[96] By 4:05 a.m. on January 15, 2011 Barr came out of the barn again with the flashlight, walked around, and went back inside. By 6:13 a.m. on January 15, 2011 Barr came outside with the flashlight again. A bright light was observed inside the barn through the door when it was open.

[97] By 6:22 a.m. Barr ignited a fire in the fire pit on the north side of the barn.

[98] The fire produced dark red flames, sparks and smoke as it had done on two prior occasions.

[99] By 6:53 a.m. the fire went out and Barr was out of sight.

[100] It was noted by police that lights were on in the barn all night and Barr did not leave the property. It was also noted that there were no lights in the residence on the property.

THE LAW

Standard of Review as Set Out in Garofoli

[101] A search warrant is a presumptively valid court order. In R. v. Garofoli, the Supreme Court set out the standard of review which is noted in para. 56 as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[102] Thus, one looks to determine if, on the face of the warrant and the ITO, whether there is a basis upon which the issuing justice could have issued the warrant.

[103] The issuing justice’s decision must be upheld unless the applicant establishes that it is invalid by showing on the balance of probability that there was no basis for its issuance.

[104] Further, in Garofoli, in para. 68 the Court provided a review for the treatment of information given by confidential informants. In para. 68 the Court held as follows:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the “tip”;

(b) the informer’s source of knowledge;

(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[105] Surveillance, as well as other police investigative tools, along with officers’ experience and training, are all used to test the reliability of a tip received from a confidential informant.

[106] The law is clear that mere conclusory statements on their own from a confidential informant are not sufficient to provide reasonable grounds evidence for a search warrant. There must be other objective evidence to measure the reliability of the CI. (R. v. Buchanan, 2016 ONSC 2101, para. 27)

R. v. Debot

[107] In R. v. Debot, [1989] 2 S.C.R. 1140, the Court dealt with the test to be applied in assessing information from confidential informants. In para. 53 of Debot, the Court held as follows:

… First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[108] Further, in para. 63 the Court stated:

… [I]t 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.

[109] Further the Court noted:

… [T]he level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.

[110] In para. 45 of R. v. Loewen, 2016 BCCA 351, the Court stated that:

In assessing the totality of the circumstances one must look to (a) the extent to which the information predicting the criminal offence is compelling, i.e. the extent of detail provided; (b) the credibility or reliability of the source; and (c) the extent of corroboration.

[111] The Court also noted that a search warrant is an investigative tool and its justification rests on reasonable grounds, not on proof beyond a reasonable doubt (see para. 48 of Loewen).

[112] In R. v. Prosser, 2016 ONCA 467, at para. 14, the Ontario Court of Appeal noted that information provided by confidential informants does not have to shoulder the entire burden of establishing the reasonable grounds belief.

[113] Further, in Prosser the Court noted that the issuing justice is to consider the ITO as a whole, not one piece at a time, “because each piece of evidence colours other pieces of evidence revealing a fuller and truer picture only through a consideration of the evidence as a whole”. (See para. 16)

[114] Further, in para. 18 the Court noted that the reviewing justice is entitled to rely upon the opinion of the affiant of the ITO about the practices of drug dealers as well as references to officers’ training and experience. The Court further noted:

The contents of an ITO need not be compliant with the rules of evidence applicable at trial. After all, neither issuance of a search warrant nor a Garofoli review hearing is intended to test the merits of any of the Crown’s allegations in respect of the offence. That is done at the trial.

[115] Finally, in the case of R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 62, Moldaver J. wrote as follows:

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, “a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police” (Yeh, at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

[116] Thus, the Court concluded the analysis of objective reasonableness is to be conducted through the lens of a reasonable person “standing in the shoes of the police officer” (MacKenzie, para. 63).

[117] The Court further noted that “while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that police be allowed to carry out their duties without undue skepticism or the requirement that their every move be placed under a scanning electron microscope.” (MacKenzie, para. 65)

ANALYSIS

CI#1

[118] The ITO reveals that CI#1, whose identity is known to the affiant, provided information to police in November 2010 and in January 2011. The information provided by CI#1 in November 2010 was that “James DiBenedetto was involved in methamphetamine production and his son Mike had problems with the police and that James DiBenedetto is the actual drug dealer.” “James DiBenedetto is involved in methamphetamine and heroin production.” These statements on their own from CI#1 are mere conclusory statements which, on their own, have limited value.

[119] CI#1 further stated to police that the applicant owns an old railway building in Fort Erie and is from Thorold. This information has been corroborated by the police investigation, but this information on its own does not meet the strict Debot test and still has limited value to the investigation, particularly since this CI is not well known to the police.

CI#2

[120] CI#2 is not well known to police. The informant was approached by police and agreed to provide information. Therefore, the credibility of CI#2 is unknown to police.

[121] However, as stated in Debot, para. 53, “weakness in one area may to some extent be compensated by strengths in the other two.”

[122] However, while CI#2 has not been tested by police before, many of the details provided to police are corroborated by the police investigation, surveillance, experience and training, or other CIs.

[123] The corroborated information includes the following:

• Confirmation that James DiBenedetto resides at 49 Foresthill Crescent, Fonthill, together with Jason Barr, along with Mr. DiBenedetto’s young daughter;
• Jason Barr used to be a cocaine dealer;
• Vehicles owned/driven by DiBenedetto include a Dodge Ram truck, a Mercedes, and a Porsche. Police confirmed the Ram truck, Mercedes, and Porsche are registered either directly or indirectly to DiBenedetto.

[124] Further specific compelling information provided by CI#2 is that James DiBenedetto “hides” ownership of his properties in the names of his sister and his mother. The police investigation conducted by Det. Shennan corroborated that the farm at 85014 Creek Road in Wainfleet is in the name of James DiBenedetto’s mother, Pierina DiBenedetto and the residence at 49 Foresthill Crescent, Fonthill is registered to James DiBenedetto’s sister, Mary Powley. However, hydro accounts for both the Wainfleet farm and the residence at 49 Foresthill Crescent, Fonthill bear the name of James DiBenedetto.

[125] Further, specific details provided by CI#2 include observations of “cocaine” in the home at 49 Foresthill Crescent, Fonthill, along with “bundles of cash”.

[126] CI#2 also references that DiBenedetto “is actively trafficking drugs now”. This also confirms information provided by CI#1.

[127] It appears that CI#2 has firsthand information that is detailed, compelling and corroborated by police. Information provided by CI#2 is significant to the investigation. As the Court stated in para. 63 of Debot, it should not be necessary for the police to confirm each detail in an informant’s tip, as long as the sequence of events conform sufficiently to an anticipated pattern to remove the possibility of innocent coincidence.

[128] Further, CI#2 made specific reference to the applicant’s association with other known persons some of whom police have confirmed are of known criminal background.

[129] Dealing with association with criminals known to police, the Court stated in Debot, para. 57, that:

I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress an otherwise unsubstantial case for searching a suspect. At the same time I find it difficult to accept the proposition that the past activities of a suspect are irrelevant. Indeed, as Martin J.A. points out at pp. 220-21 of his judgment:

Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on the ground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs its probative value.

[130] Here, a pattern is beginning to emerge. As more pieces of information are gathered together, that possibility of “innocent coincidence” begins to diminish. Also, all the information is to be viewed through the lens of a reasonable person standing in the place of a police officer.

CI#3

[131] CI#3, whose identity is not known to Det. Howe, is a self-admitted heroin addict and a member of the Niagara heroin subculture. CI#3 has provided information that is both firsthand and hearsay from other members of the heroin subculture. CI#3’s knowledge and details pertain mainly to heroin. CI#3 has stated that Mike DiBenedetto is involved in heroin trafficking and heroin is obtained from his father.

[132] CI#3 also confirms some of the information of CI#1 and CI#2 regarding the applicant’s involvement with drugs, drug production, trafficking of drugs, availability of drugs and cash associated with 49 Foresthill Crescent in Fonthill.

CI#4

[133] CI#4 is referenced in the ITO as a self-admitted member of the heroin subculture in Niagara. CI#4 has been referenced as specifically providing information to police which resulted in seizure of drugs and property, as well as person arrested. CI#4, therefore, has a proven history of credibility and reliability with police. Thus, one good report from a reliable source remains a good report.

[134] CI#4 also stated specifically that Mike DiBenedetto receives heroin from his father in Fonthill. This is detailed and specific information coming from a proven reliable source.

[135] This tip from CI#4 also corroborates information from CI#1 and CI#3 regarding Mike DiBenedetto and heroin. It also corroborates CI#2 regarding James DiBenedetto trafficking in drugs. The earlier pattern is continuing.

CI#5

[136] Information from CI#5 references James DiBenedetto Jr. as trafficking in methamphetamine. CI#5 also references Mike DiBenedetto as “a large scale drug dealer”.

[137] CI#5 also states that James DiBenedetto Jr. is in possession of methamphetamine and is trying to introduce it in St. Catharines.

[138] However, the information for this CI#5 is dated in 2007, so it is somewhat stale-dated.

[139] The information from the five CIs alone does not and cannot shoulder the entire burden of presenting reasonable and probable cause. However, the issuing justice is to consider the totality of all of the information, not pieces in isolation. The information provided by the CIs likely led police to the conducting of the surveillance.

Analysis of Police Surveillance

[140] As a result of surveillance on November 10, 2010 police connected both James DiBenedetto and Jason Barr to the residence at 49 Foresthill Crescent in Fonthill. Both persons also had access to the Dodge Ram truck which police confirmed was registered to a numbered company owned by James DiBenedetto.

[141] Surveillance on November 10, 2010 also placed Jason Barr at 85014 Creek Road, Wainfleet, as well as the Dodge Ram vehicle owned by the applicant.

[142] Further surveillance on November 11, 2010 again placed the Dodge Ram truck at the northwest barn in Wainfleet and Jason Barr at the barn. This was the first occasion where Jason Barr was observed exiting from the barn at 6:31 p.m. and observed burning “an unknown substance”. This was the first of three burns of substances to be observed by police surveillance.

[143] The further surveillance on November 30, 2010 again placed James DiBenedetto in the Dodge Ram arriving at the northwest barn in Wainfleet where Jason Barr had been previously noted on November 10 and 11, 2010.

[144] On November 30, 2010 surveillance shows James DiBenedetto was joined by Jason Barr who came out of the same northwest barn.

[145] A short time later, both left in the Dodge truck and drove direct to 49 Foresthill Crescent, Fonthill. A heavy blue bag and plastic clothes bin containing items was removed from the truck and taken inside the residence.

[146] By this time, the connection between James DiBenedetto, Jason Barr, the Dodge Ram, and both properties cannot be simply mere coincidence, particularly in view of all of the information available to police. Further, police noted that despite a house on the premises at 85014 Creek Road, Wainfleet, all activities were observed in or at the barn, and the house throughout the surveillance remained uninhabited.

[147] One may conclude from some of the surveillance that police in some instances captured the applicant’s ordinary living, such as the applicant driving his daughter to school, or picking her up from school, or attending to visit at his mother’s residence in Thorold, or attending the residence of his son Mike at 34 Silvan Court in Welland. However, the surveillance also captured patterns of behaviour, such as driving to multiple banking institutions, which behaviour may seem innocuous to the ordinary citizen but may be very significant to the trained police officer and significant in view of all the information available to police.

[148] On January 13, 2011 police surveillance observed Jason Barr at the barn and the second of the chemical burns took place. On that day, police specifically noted:

• Jason Barr on the property of the barn;
• Exhaust coming from the barn;
• Footprints in the snow where a prior chemical burn had taken place;
• Jason Barr was observed igniting a fire in the fire pit that lasted for approximately five minutes (site of previous burn);
• Barr was in the barn during the night of January 13, 2011 and lights were visible in the barn throughout the night.

[149] On January 14, 2011 it was clear that Barr’s vehicle had been parked overnight. Barr remained inside the barn, leaving the premises only once to purchase a box of groceries.

[150] By January 15, 2011 at 6:13 p.m. Barr exited the barn and a bright light could be seen in the barn. At 6:22 a.m. Barr exited the barn and ignited a fire in the fire pit on the north side of the barn which is the same place where others had been observed. This is now the third observed chemical burn, all following the same pattern. By 6:53 a.m. on January 15, 2011 the fire was out and Jason Barr was back inside the barn.

[151] For a trained drug enforcement officer, this was much more than mere suspicious behaviour. The three chemical burns were all similar. Society relies on police to detect criminality. That is their job. By the time of the observation of the third chemical burn, it was reasonable to conclude that there was no longer even a remote chance of innocent coincidence. A clear pattern of nefarious conduct and criminal wrongdoing was emerging.

[152] Drawing on police training and experience, and all of the previous information available to them, it was reasonable to conclude that in the barn there was a clandestine methamphetamine drug lab. Barr remained in the barn all night during the “cooking process” to preserve the integrity of the cooked methamphetamine.

[153] Thus, a pattern clearly emerged leading to reasonable grounds to believe that a methamphetamine clandestine illegal drug lab was situated in the barn. Production of methamphetamine was taking place in the barn and the end product was being delivered to the home on Foresthill Crescent for distribution and sale.

CONCLUSION

[154] From the information provided by the five CIs, together with the police surveillance, and other police checks and information available, as well as police experience and training, I conclude that the issuing justice of the peace could be satisfied of reasonable and probable grounds to issue warrants for the farm and residence. I, therefore, conclude there is no breach of the applicant’s s.8 Charter rights. Therefore, I need not consider s.24(2) of the Charter.

[155] The application is dismissed.

Maddalena J. Released: January 13, 2017