Court File and Parties

COURT FILE NO.: CR-15-90000629-0000 DATE: 2017-07-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HUNTLEY GOLDING Applicant

Counsel: Faiyaz Alibhai, for the Crown Reid Rusonik, for the Applicant

HEARD: May 8, 2017

A.J. O’Marra J.

[1] Mr. Huntley Golding is charged with having in his possession cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act, two counts and having in his possession proceeds of crime, $42,125.00 Canadian contrary to s. 354(1) of the Criminal Code on August 10, 2014.

[2] A search warrant was executed by police at his home, 7415 Magistrate Terrace, Mississauga in which was found 1.2 kilogram brick of powder cocaine and 877.19 grams of crack cocaine on August 10, 2014. On his arrest, of the same date, police seized 42.12 grams of crack cocaine in a motor vehicle he was operating.

[3] The grounds for the issuance of the search warrant were based on information provided by a confidential source, identified in these proceedings, to the police at the time of her arrest during a project investigation into the large scale distribution of cocaine, August 10, 2014.

[4] The applicant has applied pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude the evidence seized by the police pursuant to the search warrant on the grounds that his s. 8 Charter rights against unreasonable search and seizure were violated. He claims inter alia that the confidential source was neither credible nor reliable and the information to obtain failed to establish a reasonable probability of illegal drugs being found at 7415 Magistrate Terrace.

Conduct of the Garofoli Hearing

[5] At the outset of the application, the Crown provided a redacted information to obtain which edited out information which might serve to identify the confidential source. However, the applicant produced an affidavit of a person who self-identified as the person said to have been the confidential source. In a separate ex parte, in camera hearing, conducted in accordance with the procedure and principles set out by the Supreme Court of Canada in Regina v. Basi, [2009] 3 S.C.R. 339, the confidential source with the benefit of independent counsel provided a clear, express and informed waiver of her right to informer privilege to her identity being publicly known – Jenice Elite Brown.

Background to the Issuance of the Search Warrant

[6] In 2013, a project investigation called Project Rean began into a large scale cocaine distribution network operating within the greater Toronto area. The investigation identified six principal known persons to be involved in high level cocaine trafficking, two of whom were Patrick Prince and Dereck Gordon. In the course of the investigation an authorization was granted to intercept the private communications of the six principal known persons.

[7] Based on information received from Ms. Brown after she was arrested for being in possession of proceeds of crime in relation to the drug investigation the police sought search warrants for 7415 Magistrate Terrace, Mississauga and 305-1 Valhalla Inn Road Etobicoke.

[8] The affiant, Detective Constable Robert Wallace a police officer with the Toronto Police Service set out in the Information to Obtain (ITO) an overview of the investigation.

[9] On August 10, 2014 a number of intercepted calls between Dereck Gordon and a female known in the investigation as Jenice Brown occurred in which they discussed the receipt of a package believed by the police to contain either controlled substances or the proceeds of crime. On the same date Ms. Brown was seen to arrive at 2590 Rugby Road and enter the building with two weighted duffel style bags and a rolling suitcase. In the overview of the investigation at paragraph 8, the affiant states:

Jenice Brown is intercepted speaking with Dereck Gordon when she indicates that she is counting what is believed to be money and that she will be leaving her address. Jenice Brown is observed leaving 2590 Rugby Road, Unit 312 in the company of a male identified as Nathaniel Brown, the two were carrying a purse and weighted dark knapsack. The two entered Brown’s registered Honda Accord and were arrested. A search of the purse and the knapsack resulted in seizure of large quantities of Canadian and American currency.

[10] The circumstances of Ms. Brown’s arrest are further described at paragraphs 28-29 of the ITO:

28. At approximately 3:25 p.m. Jenice Brown was observed exiting Unit 312 in the company of an unknown male black. Jenice was carrying a purse on her shoulder and the unknown male black had a dark knapsack over his arm. Brown and unknown male black later identified as Nathaniel Brown, born July 19, 1995 were followed to the underground garage of the building where they attended a 2008 Honda Accord bearing license plate BTAF 202, this is the registered vehicle of Jenice Brown. At this time an operational decision was made to arrest Jenice Brown and Nathaniel Brown for possession of proceeds of crime. Both were taken into custody without incident.
29. During a search of the immediate area of the vehicle incident to arrest officers located Jenice’s purse which contained stacks of US currency wrapped in white plastic. Officers also located a black knapsack which contained numerous stacks of Canadian currency. The amount of money seized is estimated in the hundreds of thousands of dollars in both US and Canadian currency.

[11] It was noted in the overview of the investigation that during the intercepted telephone calls between Gordon and Brown reference was made to Patrick, believed to be Patrick Prince, another principal known person believed to be a high end cocaine trafficker and the “significant other” of Jenice Brown.

[12] At the time Ms. Brown and her son, Nathaniel, were arrested she offered to provide information, the circumstances of which were set out in an affidavit of sub-affiant Detective Douglas Bachus filed on the application. Detective Bachus was in charge of the Major Projects Section – Drug Squad and one of the officers involved in Project Rean and lead investigator along with Detective Daryn Zeleny. He set out in his affidavit at paragraphs 4-5:

4. I was on duty August 10, 2014 and when I learned there had been an arrest, I approached the police vehicle containing Jenice Brown. I walked up to her and asked her if she understood why she was under arrest. She responded by saying yes, but immediately advised me that she had some information, and wondered if relaying the information could help her son out. I said it could, and she asked, if it could help her out as well. I said, it depends on what the information is. ….
5. Jenice Brown told me she had information on a cocaine distributor, male, black, known to her as “Freshy”, 40 years old, short stocky build and a bald head. She knew an address for Freshy but she needed to point it out. At that point, I instructed officers Andrew Teixeira and Andy Medeiros to continue with the investigation. I assigned Andrew Teixeira as the primary source handler and Andy Medeiros to assist him.

[13] Detective Constables Teixeira and Medeiros were the officers who had Ms. Brown in custody.

[14] Reference is made in the ITO to Ms. Jenice Brown by name in the overview of the investigation as well as the background and history of the investigation. After the description of Ms. Brown’s arrest under the heading of Confidential Source Information, the affiant refers thereafter to the informant as the “confidential source”. Detective Constable Teixeira is identified as the primary handler of confidential source since 2014.

[15] In terms of positive features to support the reliability of the confidential source the affiant sets out the circumstances of her direct involvement and knowledge of cocaine trafficking.

34. This is the first time that the source has provided information that the handler is aware of. The source was arrested on today’s date with hundreds of thousands of dollars in US and Canadian currency which is believed to be obtained through the sale of cocaine. Teixeira believes that the source has intimate knowledge of the information given which directly relates to cocaine trafficking. The source is also the significant other of a known drug trafficker in Project Rean who has been found to be in possession of a kilogram of cocaine and approximately $500,000 in June 2014.

[16] As to negative features which would detract from the confidential source’s reliability, the affiant sets out the following:

35. The source has provided information with the intention of seeking court consideration for outstanding charges which includes possession and proceeds of crime which is believed to (be) from the sale of cocaine. Although this information may be viewed as a negative feature it adds to the credibility of the information provided in regards to other kilogram cocaine traffickers who are described in this information.
36. The source does have a criminal record. This criminal record does not include any convictions for perjury or fraud. The source does have convictions for attempt to obstruct justice.

[17] The affiant further notes at paragraph 36 that the information provided by the source is derived from first and second hand knowledge.

[18] The specific information provided by the source, Ms. Brown, to Detective Constable Teixeira is set out at paragraph 39:

(a) The source indicated that a male black known to her as Freshy is a high level cocaine dealer. Freshy is described as male black, 40 years, short stocky build, and bald head. Freshy has a home address of 7415 Magistrate Terrace in Mississauga and drives a brown Honda with black rims. (The source has personally shown Teixeira this address on August 10, 2014). (b) The source has been attending the above listed address for over a year to pick up large quantities of currency on a monthly basis. The source has picked up as much as $200,000 in a single pick up from Freshy at this address. A week prior to today’s date the source attended the above listed address and observed (3) three kilograms of cocaine wrapped in the brick form in the kitchen area of 7415 Magistrate Terrace in Mississauga. This is not the first time the source has observed cocaine at this address but it is the most recent to date. The source described Freshy as always having cocaine at this residence. (c) Freshy also has a condo located at 1 Valhalla Inn Road in Etobicoke which the source will attend and retrieve large sums of currency from Freshy. Freshy will attend from inside the building drop off the currency and re-attend inside the building. The source does not know which unit Freshy occupies.

[19] In terms of the efforts to confirm the information provided by the informant the police conducted a surveillance of the addresses, 7415 Magistrate Terrace, Mississauga and 1 Valhalla Inn Road, Etobicoke. The affiant sets out in paragraphs 40 to 43 of the ITO the following:

(a) A brown Honda with license plate BLZF 858 was observed outside 7415 Magistrate Terrace on August 10, 2014. According to the MTO the vehicle with license plate BLZF 858 was attached to a 2003 beige Honda Accord. (b) A black Honda Accord with license plate BSPZ 287 was also seen outside at 7415 Magistrate Terrace on August 10, 2014. (c) An unknown black male was seen to leave 7415 Magistrate Terrace on August 10, 2014 and to drive the black Honda Accord to 1 Valhalla Inn Road where he was seen to utilize a fob to gain access to the underground parking garage where the vehicle was parked at spot 28, level 3 associated to Unit 305, 1 Valhalla Inn Road. The fob used to gain access is also associated to 305-1 Valhalla Inn Road. (d) It was also noted in the earlier investigation that on June 10, 2014 during a surveillance, Patrick Prince met with an unknown male described as “male black, 40 years, 5’ 7”, 225 lbs., slight salt and pepper hair, wearing black baseball cap with a black and red blue jays logo, a green, blue and black striped shirt, black shoes with white stripes. At that time the unknown black male entered the black 2004 Honda Accord with license no. BSPZ 287 (seen August 10, 2014 at 7415 Magistrate Terrace) and to travel in tandem with Patrick Prince to 273 Southpark Road where Prince placed a bag from his vehicle into the rear of a parked Range Rover and then leave the area in their respective vehicles. (e) Patrick Prince was believed to be a high end drug trafficker.

Law Regarding Review of Search Warrants

[20] Under s.487 (1) of the Criminal Code an authorizing justice must be satisfied based on the information presented that there are reasonable grounds to believe that evidence will be found of a criminal offence. Where a search warrant has been judicially authorized pursuant to s.487, as in this case, it is to be considered presumptively lawful by the reviewing justice. As a lawful search the onus is on the applicant to establish that the statutory pre-conditions have not been met, that is, there was no basis for the authorization of the warrant.

[21] In R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767, Juriansz, J.A. at para. 45 noted that the presumption in this context means that the issuing justice must be upheld unless the applicant meets the burden of demonstrating the invalidity of the warrant.

[22] The Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 56 set out the test for reviewing an issuing judge’s decision to grant a warrant (or intercept authorization as in that case):

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, non-disclosure, 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.

[23] The reviewing court is not to substitute its decision for that of the issuing justice. The reviewing court is entitled only to determine whether there was sufficient credible and reliable evidence, which would allow the authorizing justice to find reasonable, probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified time and place. As noted by Fish J. in R. v. Morelli, [2010] 1 S.C.R. 253 at para. 40:

The question is not whether the reviewing court would, itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit the justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[24] Further, in Garofoli, Sopinka J. at para. 62 noted:

The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

[25] The warrant is to be examined as a whole with respect to the totality of circumstances. The court is not to analyze isolated passages, for to do so would be inconsistent with the legal requirement that the issuing justice must act judicially, which would include that he or she “diligently and independently” review the entire information to obtain (ITO) and consider all of its contents. (See R. v. Campbell, 2010 ONCA 588, supra, at para. 23).

[26] The Information to Obtain must set out reasonable grounds for the issuing justice to believe an offence has been committed and that there is evidence to be found at the proposed place to be searched. The statutory and constitutional standard is one of credibility-based probability. It does not require proof of probabilities, much less proof beyond a reasonable doubt. (See Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 167.)

[27] In R v. Sadikov, 2014 ONCA 72 at para. 82, the court notes that the authorizing justice is to make his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice is entitled to draw reasonable inferences from the contents of the ITO.

[28] What is of significance is that the inquiry begins and ends with an assessment of whether the record contains reliable evidence that might reasonably be believed on the basis of which the warrant could –not would - have issued. (See Sadikov at para. 88, Morelli, at para. 40 and Garofoli at p. 1452.)

[29] It is important for the reviewing court, as observed by Clark J. in R. v. Adansi, 2008 ONCJ 144, [2008] O.J. No. 1202 (SCJ) at para. 33 to be cognizant of the following when considering the information presented in the information to obtain:

An ITO is not held to the same standard as an indictment or other formal pleading. First, at the investigative stage, it is impossible for the state to achieve the same degree of precision. Indeed, the very purpose of the investigation is to allow the police to gather the evidence necessary to allow precision later in the process. Second, documents prepared at the pre-trial stage are acknowledged to be largely the product of lay drafters. Police officers, therefore, should not be held to the same standard as is applied to documentation prepared by counsel. R. v. Hunter (1987), 34 C.C.C. (3d) 14.

[30] In R. v. Nguyen, 2011 ONCA 465 at para. 57 the Court of Appeal observed that the review is not an exercise in examining the conduct of the police with a fine tooth comb seeking out minor errors or omissions, and embellishing those flaws to the point that the police conduct is on trial rather than the sufficiency of the evidence in support of the application. Minor or inconsequential misstatements or errors not material to the issuance of the warrant do not invalidate the warrant.

Position of the Applicant

[31] It is the position of the applicant that the search warrant in this instance, wholly dependent on the information provided by the confidential source, does not reflect credibly based probability to justify the issuance of the search warrant. The applicant submits that Jenice Brown was not only a first time informant without a history of being credible or reliable she had a motive to lie, to save herself with no apparent consequences if she did. There is nothing in the information to obtain which sets out any caution to her for not telling the truth.

[32] Counsel maintains that the information she provided was devoid of any compelling detail in its prediction of criminality occurring at the locations identified.

[33] The police failed to confirm in any meaningful way the information she provided beyond brief surveillance of the locations and referenced, what could only be described as situations of innocent association.

[34] The affiant in structuring the ITO and in the use of certain phrases was either negligent or deliberately intent on misleading the issuing justice in the following ways:

(i) By not referring to the confidential source as Jenice Brown the affiant was trying to create a false impression that Jenice Brown was not the informant, but rather someone else. (ii) The affiant attempted to enhance her reliability by referring to Detective Teixeira as “the primary handler of the source since 2004” in paragraph 32, rather than as of August 10, 2014, and by use of the phrase “there have been no incidences of the source being misleading” in paragraph 33 leaving the impression there was a longer relationship than the date of her arrest. (iii) The affiant failed to disclose her complete criminal record which included a number of convictions for theft, personation and fail to comply with court orders. Counsel argued that the affiant failed to be full, frank and fair by omitting the other crimes of dishonesty. (iv) The affiant was misleading in stating that the informant provided information with the intention of seeking “court consideration for outstanding charges”, by implying any consideration given to her would be dependent on the court’s assessment of the value of the information she provided in a situation where she was already facing charges. In this instance she had not been charged, but was under arrest at the time she offered to provide information.

[35] In terms of the compelling nature of the information provided by the informant, on an objective reading of the warrant, most of the information provided by Ms. Brown is first-hand information which removes it from the realm of rumour and gossip. The direct observations provided by the informant include the following:

1. She spoke of direct involvement with a person referred to as “Freshy” with an address of 7415 Magistrate Terrace, with whom she had been involved with for over a year, during which she picked up large quantities of currency on a monthly basis. Further, in a single pick up she had received as much as $200,000 from the person referred to as Freshy. She had a long term relationship with Freshy and involvement with the address of 7415 Magistrate Terrace.
2. Ms. Brown provided information as to direct observation of three (3) one kilogram packages of cocaine wrapped in brick form in the kitchen area of 7415 Magistrate Terrace as recently as one week before August 10, 2014, the date of her arrest and providing the information to the police. Further, it was not the first time that she had seen cocaine at that address and that the person known to her as Freshy always had cocaine at that address.
3. She directed the police to a condo address, 1 Valhalla Inn Road, where she attended to pick up large sums of cash from Freshy who would come outside from the condominium and turn over the cash. She indicated she had not been inside the building and did not know the condo number.
4. She directed the police officers, Teixeira and Medeiros, to the addresses and pointed them out to them from her personal knowledge of having attended those locations.
5. She provided a description of Freshy’s appearance, male, black, 40 years, short and stocky and bald. She described a motor vehicle that he drives, a brown Honda with black rims.

[36] In terms of her credibility, while she has a long criminal record of convictions for crimes of dishonesty the affiant indicated that she had a criminal record and no convictions for perjury or fraud, which is true. It was stated that she had convictions for attempts to obstruct justice, convictions which would be highly relevant to consideration as to whether she was a person likely to provide misleading or erroneous information. While it may have been better to have cited all of the criminal record, or appended the list convictions to the ITO, the affiant must always be cautious in the degree of detail or specifics which may lead to exposing the identity of the confidential informant and breaching the informer’s privilege. Even though the informant in this instance waived privilege at the time of hearing this application, she had expressed concern for her safety at the time.

[37] In R. v. Hosie, [1996] O.J. No. 2175 at para. 32 the court stated:

The courts have for many years recognized that it is in the public interest that, absent very narrow exceptions, information that would reveal the identity of a police informant need not be disclosed, even to the judicial officer to whom application is made for a search warrant.

[38] This was not a case as in R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (OCA) where the affiant used the odd wording of the informer having “no convictions for perjury or public mischief” without indicating whether the informer had “a criminal record”. That was the situation in which it appeared the affiant deliberately set out to make the informer appear honest. Not so in this instance, by alerting the issuing justice that the first time informant had been arrested the day of the application with hundreds of thousands of dollars believed to be from the sale of cocaine and her close association with a high level drug dealer.

[39] Even if all of the convictions were noted in the ITO they were dated, and none of which would have caused the issuing justice to have refused the application considering other aspects of the information provided in the assessment of the CIs credibility – such as:

• She was arrested August 10, 2014 in possession of large sums of cash, in the hundreds of thousands of dollars both US and Canadian currency believed to have been obtained from the sale of cocaine, which lent credibility to her assertion she had been picking up significant sums of money from 7415 Magistrate Terrace. • She was the “significant other” of a known drug trafficker in Project Rean, Patrick Prince who was himself connected to a kilogram of cocaine found in his vehicle and $500,000 in a residence associated to him – another factor which would strengthen the assertion she had been picking up large sums of money from 7415 Magistrate Terrace and 1 Valhalla Inn Road. • It was the informant who broached the issue as to whether it could help her and her son if she provided information without any assurance as to whether it would. Detective Bachus said “it could”.

[40] With respect to the issues raised by the applicant that the affiant was being deceptive in not identifying the confidential informant as Jenice Brown, it would have been clear to the issuing justice in reading the whole of the ITO that Jenice Brown, who is referenced twice in the overview and history of the investigation of having been arrested August 10, 2014 with a large quantity of cash believed to have been from cocaine sales, and the significant other to Patrick Prince a high level drug trafficker, she was one and the same as the first time confidential source “arrested on today’s date with hundreds of thousands of dollars in US and Canadian currency which is believed to be obtained from the sale of cocaine”…. and “the significant other of a known drug trafficker in Project Rean who is found to be in possession of a kilogram of cocaine and approximately $500,000 in June 2014”. (A reference to Patrick Prince in Appendix para. 183 and 185 of the ITO.)

[41] There is no requirement to identify the confidential informant to the issuing justice. Indeed, the usual practice is to make reference to informants as confidential source “or confidential informant” (CI) in order to ensure the privilege. Although drawing the connection in this instance would have been readily apparent to an issuing justice diligently and independently reviewing the entire ITO and considering all of its contents.

[42] In R. v. Browne, [2012] O.J. No. 3036 (SCJ) at para. 44, Quinn J. stated:

Where a misstatement or omission in the ITO is the product of inadvertent or good faith police error, the Crown may rely on the “amplified record” (that is, the record disclosed through the examination of witnesses on the voir dire or pre-trial application and the preliminary hearing) to “correct” the document.

[43] With respect to counsel’s submission as to Detective Constable Teixeira being referred to as her “primary handler” since 2014 as an attempt to enhance her reliability and credibility, it is clear by the amplification provided in Detective Bachus’ affidavit that he was indeed designated by the lead investigator as “the primary source handler”. It was not misleading to characterize the officer as such. Further, it could not have been clearer that the confidential informant was a “first time” source who had been arrested that very day, (see ITO paragraph 34 as reference above).

[44] In considering the totality of the circumstances the information to obtain sets out reasonable grounds based on the informant’s information, which was compelling as to criminal activity and evidence of such to be found at 7415 Magistrate Terrace, Mississauga.

[45] In the result the application is dismissed.

A.J. O’Marra J.

Released: July 5, 2017

COURT FILE NO.: CR-15-90000629-0000 DATE: 2017-07-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HUNTLEY GOLDING Applicant

Ruling A.J. O’Marra J.

Released: July 5, 2017