R. v. Gatt, 2017 ONSC 4833

CITATION: R. v. Gatt, 2017 ONSC 4833

COURT FILE NO.: CR-15-3350

DATE: 20170811

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Tanya Lynn Gatt, Wayne Anthony Locknick, Shaun Gregory Garrity and Kyle Daniel McKnight

Accused

COUNSEL:

Edward J. Posliff, for the Crown

Evan Weber, for the Accused, Tanya Lynn Gatt

Frank Miller and Shannon L. Pollock, for the Accused, Shawn Gregory Garrity

Maria Carroccia, for the Accused, Wayne Anthony Locknick

HEARD: December 7, 8, 9, 19, 2016 and January 4, 2017

ORAL REASONS GIVEN: January 26, 2017

Ruling on applications to exclude evidence pursuant to s. 24(2) of the charter as a result of asserted s. 8 charter violations

Verbeem J.:

PREFACE

[1] On January 26, 2017, I provided oral reasons that comprehensively explained the path of my reasoning in dismissing applications brought by Mr. Locknick and Mr. Garrity, pursuant to s. 24(2) of the Charter, to exclude certain evidence obtained by prior judicially authorized searches. Those reasons explained how I arrived at my finding on the various issues before me and were responsive to the submissions of the Crown and the accused persons, on the various issues raised on the application. I advised the parties of my intent to provide them with additional written reasons that would detail the contextual background to, and evidence on, the application and expand the explanation of my reasoning on certain points.

[2] At the commencement of trial on February 21, 2017, I received a joint request from counsel for Mr. Locknick and the Crown to sever counts 2 and 3 from the indictment, as they relate to Mr. Locknick and that a newly constituted proceeding against Mr. Locknick be adjourned to a date in March 2017, to be resolved. At a subsequent assignment court, the return date was specifically scheduled for March 21, 2017.

[3] Over the course of February 21-22, 2017, the counts against Mr. Garrity and Mr. McKnight were withdrawn and the count against Ms. Gatt was stayed at the request of the Crown.

[4] On March 21, 2017, Mr. Locknick consented to the Crown reading in a set of facts, which he then admitted. He conceded that the facts supported findings of guilt on counts 1 and 2 of the new indictment, and those findings were made.

[5] Given the manner in which the proceeding was disposed, I inquired whether counsel continued to require written reasons on this application.

[6] Mr. Locknick’s counsel indicated that she would advise the court, through trial coordination, if written reasons were required. On May 25, 2017, Mr. Locknick’s counsel advised that her client “wanted a copy of the decision in writing”.

[7] This written ruling reproduces the reasons I delivered on January 26, 2017, together with appropriate contextual background information, a summary of the evidence on the application, a summary of the parties’ positions on specified issues, an expanded explanation of my reasoning on identified points, most notably the reasonable apprehension bias issue, and a statement of the legal principles that I applied in determining the applications.

I) NATURE OF THE APPLICATION

The Counts

[8] In this proceeding, four accused are varyingly charged on a three count indictment alleging three distinct conspiracies contrary to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, to traffic in a controlled substance contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).

[9] Count one alleges that Tanya Lynn Gatt, Wayne Anthony Locknick and Shaun Gregory Garrity conspired with one another and other persons who are not indicted, between July 18, 2013 and August 5, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.

[10] Count two alleges that Tanya Lynn Gatt, Wayne Anthony Locknick and Daniel McKnight conspired with one another and other persons who are not indicted, between August 5, 2013 and September 2, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.

[11] Count three alleges that Wayne Anthony Locknick conspired with other persons who are not indicted, between July 30, 2013 and August 2, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.

[12] The charges generally arise from a foundational allegation that Mr. Locknick conspired with other individuals to traffic in a controlled substance, by directing such activity, over the telephone, while incarcerated in various correctional facilities.

[13] All of the accused have pled not guilty to the counts with which they are charged.

Nature of the s. 24(2) Remedial Request

[14] At trial, the Crown intends to lead evidence of the content of private communications intercepted pursuant to an authorization (and related orders and warrants) granted by Patterson J. on July 18, 2013, in accordance with ss. 185 and 186 of the Code. Mr. Locknick was identified as a principal named person in the application for the authorization. His communications, together with those of Mr. Garrity and others were intercepted through the execution of the authorization.

[15] At the time police applied for the wiretap authorization on July 16, 2013, the investigation focused on an alleged drug trafficking enterprise involving Mr. Locknick, his girlfriend Felicia Doucet and an individual named Michael Stiller. The scope of the investigation grew substantially through the execution of the authorization and was branded “Project Nessie” by police. It ultimately culminated in a 65 count information charging 23 persons with various offences, including the accused before the court. All other charges against all other accused persons have been disposed.

[16] The applicants, Mr. Locknick and Mr. Garrity, assert that the state’s interception of their communications violated their respective rights pursuant to s. 8 of Charter. They submit that once excised of information that is false, misleading or obtained by unconstitutional means, the content of the affidavit sworn in support of the authorization does not establish the statutory pre-requisites for the authorization’s grant. As a result, the interception of communications pursuant to the authorization constitutes a warrantless and presumptively unreasonable search. They bring this application for an order pursuant to s. 24(2) of the Charter excluding admission of any evidence obtained as a result of the execution of the authorization and related warrants and orders, at trial. The applicants also seek a remedial declaration that their respective rights to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter, were violated, as they assert.

[17] The evidence relied upon to obtain the authorization consists, in part, of information police gathered pursuant to several prior judicial authorizations for the use of number recorders, production orders for historical telephone records, related orders of assistance and the use of a tracking device on a vehicle used by Mr. Stiller.

[18] The prior judicial authorizations referred to above consist of the following:

a) A warrant issued by Hoffman J. of the Ontario Court of Justice, dated April 15, 2013, authorizing the use of number recorders for a mobile telephone used by Mr. Stiller and a landline number registered to a residence located at 961 Edward, Windsor, Ontario, in the name of F. Douceg (believed to be Felicia Doucet); a production order for “the usage records” associated with the foregoing telephone numbers for the period beginning January 1, 2013 and ending March 31, 2013; related orders of assistance; and an order authorizing the use of a tracking device on a vehicle said to be used by Mr. Stiller. By its terms, the warrant was valid from and including April 15, 2013 until and including June 13, 2013 (“DNR 1”);

b) A warrant issued by Hoffman J. of the Ontario Court of Justice dated April 25, 2013, authorizing the use of a number recorder with respect to a mobile cellular phone number registered to Felicia Doucet of 961 Edward, Windsor, Ontario, provided by Rogers Communication and a related assistance order. By its terms, the warrant was valid from and including April 25, 2013 until and including June 23, 2013 (“DNR 2”);

c) A warrant issued by Hoffman J. of the Ontario Court of Justice dated June 6, 2013, authorizing the use of number recorders with respect to a specified cell phone number said to be used by Mr. Stiller, the landline at 961 Edward Avenue, Windsor, Ontario, as identified in DNR 1 and the mobile telephone number registered to Felicia Doucet, as identified in DNR 2; production orders for the usage records related to each of those phone numbers for the period beginning April 1, 2013 and ending May 31, 2013; related assistance orders; and an order authorizing the use of a tracking device in association with a vehicle said to be used by Mr. Stiller. By its terms, that warrant was valid from and including June 14, 2013 until August 13, 2013 (“DNR 3”);

d) A warrant issued by Hoffman J. of the Ontario Court of Justice dated June 12, 2013. The subject matter and scope of this authorization is nearly identical to that of DNR 3. In effect, this warrant corrected the duration of the validity of DNR 3 by specifying that it was valid from and including June 14, 2013 until and including August 12, 2013 (the period of validity specified in DNR 3 was slightly in excess of 60 days contrary to s. 492.2(1) of the Code) (“DNR 4”).

[19] Consistent with the nomenclature adopted during the course of the application, I will collectively refer to the foregoing authorizations as the “DNR authorizations”. I will refer to individual DNR warrants in accordance with the references set out in parenthesis above.

[20] In addition to challenging the validity of the authorization to intercept private communications, Mr. Locknick challenges the validity of each of the DNR authorizations. He submits that, acting reasonably, the issuing judge could not have issued any of the DNR authorizations based on the content of the respective informations to obtain (ITOs), that were before him, once amplified on review and excised of all irrelevant, false and misleading information, as well as, information obtained by unconstitutional means. As such, the information obtained as a result of the execution of the DNR authorizations must be excised from the affidavit in support of the authorization to intercept communications. Once that evidence is excised, what remains cannot satisfy the statutory pre-requisites for the authorization to be granted.

Standing

[21] The Crown concedes that both Mr. Locknick and Mr. Garrity have standing to challenge the authorization to intercept communications and related orders. In two separate oral rulings during the course of the application, I found that Mr. Locknick has standing to challenge the DNR authorizations. I will reference the basis of his standing in that regard, in the course of these reasons.

II) THE RECORD ON THE APPLICATION

[22] The record on the application consists of:

1. The information to obtain (ITO) in support of DNR 1 sworn by P.C. Raymond Hamlin of the Windsor Police Service on April 13, 2013, together with DNR 1;

2. The ITO in support of DNR 2 sworn by P.C. Hamlin on April 24, 2013, together with DNR 2;

3. The ITO in support of DNR 3 sworn by P.C. Hamlin on June 6, 2013, together with DNR 3;

4. The ITO in support of DNR 4 sworn by P.C. Hamlin on June 12, 2013, together with DNR 4;

5. The authorization to intercept private communications and related orders granted by Mr. Justice T. Patterson on July 18, 2013;

6. The affidavit in support of the authorization sworn by Senior Police Constable Richard Sieberer of the Windsor Police Service on July 16, 2013;

7. An application for an order consistent with the subject matter and scope of DNR 1, together with an ITO sworn by Raymond Hamlin on April 9, 2013, which did not result in the issuance of a warrant;

8. Correspondence dated April 9, 2013, from Hoffman J. of the Ontario Court of Justice to P.C. Hamlin, titled “Re Warrant request J306”;

9. An application for an order consistent with the subject matter and scope of DNR 1, together with an information to obtain sworn by P.C. Hamlin on April 10, 2013, which did not result in the issuance of a warrant;

10. A transcript of the evidence given by P.C. Hamlin on December 9, 2015, during the course of a trial in Superior Court of Justice proceeding numbered CR-14-3223, at the City of Windsor, in relation to charges against Mr. Locknick that are distinct from the charges in this proceeding;

11. Viva voce evidence adduced from Wayne Locknick, Felicia Doucet and Tanya Gatt during the course of this application.

[23] I will reference the content of the foregoing evidence throughout the course of these reasons.

III) GENERAL OVERVIEW OF THE PARTIES’ POSITIONS

[24] Both applicants posit that the authorization to intercept private communications could not have been granted based on the evidence before the authorizing judge, as amplified and excised on review. As a result, the interception of their private communications, respectively, was an unreasonable search and violated their rights under s. 8 of the Charter. Any evidence gathered pursuant to the execution of the authorization ought to be excluded from trial pursuant to s. 24(2) of the Charter.

[25] Mr. Locknick’s challenge to the authorization is, in part, predicated on a sequential linear challenge to each of the DNR authorizations, which culminates in his submission that all evidence gathered as a result of the execution of the DNR authorizations must be excised from the affidavit in support of the wiretap authorization.

[26] To begin with, Mr. Locknick submits that the ITO in support of DNR 1 contained false and misleading information, conclusory statements that were not supported by any evidence or independent police investigation, and information that was obtained through unconstitutional means. He contends that once the offending material is excised from the ITO, what remains cannot support the warrant’s issue.

[27] Further, as I will explain more fully below, Mr. Locknick suggests that Hoffman J. inappropriately assisted (or at the very least “reasonably appears to have” inappropriately assisted) P.C. Hamlin in the preparation of the ITO that resulted in DNR 1 being issued, after a previous application failed to achieve that result. He submits that by doing so Hoffman J. created a reasonable apprehension of bias, and as a result the warrant should be quashed.

[28] Mr. Locknick also submits that DNR 1 should be quashed because, on its face, it evidences that Hoffman J. failed to appreciate the statutory pre-requisites for its issue.

[29] Mr. Locknick posits that offending content contained in the ITO in support of DNR 1 is also contained in each of the subsequent ITOs for the balance of the DNR authorizations, as well as, the affidavit in support of the wiretap authorization, and similarly it must be excised from each of them, for the purpose of review.

[30] Therefore, Mr. Locknick submits that none of the DNR authorizations could have issued and the information obtained through the execution of those authorizations must be excised from the affidavit in support of the wiretap authorization. Once all of the offending evidence contained in the affidavit in support of the wiretap authorization is removed, what remains cannot satisfy the statutory pre-requisites for the authorization to be granted. The communications intercepted pursuant to the authorization are therefore the result of judicially unauthorized and unreasonable searches contrary to s. 8 of the Charter. The admission of such evidence at trial would bring the administration of justice into disrepute and it ought to be excluded.

[31] Generally, the Crown submits that the applicants have failed to establish that their rights under s. 8 of the Charter were infringed. The content of the ITOs in support of the DNR authorizations, respectively, were capable of supporting the issue of each of the DNR warrants. Further, Mr. Locknick has failed to discharge his onus to establish a reasonable apprehension of bias with respect to DNR 1. Ultimately, compelling evidence in support of the “intercept authorization” was lawfully obtained as a result of the DNR authorizations, which was subsequently included in P.C. Sieberer’s affidavit, the content of which is capable of supporting the issuance of the wiretap authorization. Therefore, the subsequent interceptions were lawfully obtained and are admissible at trial.

IV) APPLICABLE LEGAL PRINCIPLES

[32] Pursuant to s. 8 of the Charter, everyone has the right to be secure against an unreasonable search or seizure by the state. A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which it is carried out is reasonable: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278.

[33] Here, Mr. Locknick challenges the admissibility of evidence that was obtained through the execution of searches conducted pursuant to five distinct prior judicial authorizations. When the validity of a judicially authorized search warrant is challenged, the judicial review of that search warrant begins from a presumption of validity: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The burden of proving otherwise rests, on a balance of probabilities, with the person challenging the validity of the warrant.

[34] Mr. Locknick’s challenge to the DNR authorizations is, in part, premised on a challenge to their subfacial validity, based in the content of the “information to obtain” sworn by P.C. Hamlin in respect of each of the warrant applications. He also challenges the issuance of DNR 1 on the basis of a reasonable apprehension of bias on the part of the issuing judge and on the basis that the issuing judge committed an error in law, by applying an erroneous legal standard, when determining whether to issue DNR 1. I will address those specific challenges and the legal principles applicable thereto, later in these reasons.

[35] Both Mr. Garrity and Mr. Locknick challenge the admissibility of evidence obtained pursuant to the execution of the authorization to intercept communications, on the basis of the subfacial validity of the authorization, having regard to the content of the affidavit sworn in support thereof.

[36] When objection is taken to the admissibility of evidence obtained through the execution of a search warrant or authorization, the trial judge must embark on an evidentiary hearing to determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory pre-conditions to issue the warrant or grant the authorization existed: see Pires; Lising, at para. 30.

[37] At the time the authorization was granted, s. 186(1) of the Code provided:

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[38] The conjunctive requirements set out above are generally described as the “probable cause requirement” and the “investigative necessity requirement”. I will set out the relevant legal principles applicable to each of those requirements when reviewing the grant of the authorization, later in these reasons.

[39] The specific portions of the DNR authorizations that Mr. Locknick challenges involve number recorder warrants and production orders for telephone records. The DNR authorizations were made during the period of April 2013 to June 2013. At that time, the statutory pre-conditions to the issue of number recorder warrants were set out in s. 492.2(1) of the Code, as follows:

492.2(1) A justice or judge who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that will assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and

(b) to monitor, or to have monitored, the number recorder.

[40] Section 492.2(2) permitted a justice to order a person or body that lawfully possessed records of telephone calls that originated from, or were received or intended to be received at, any telephone to give the records (or copy of the records) to a person named in an order, when circumstances referred to in s. 492.2(1) existed. Thus, a production order for telephone records could issue on the standard of “reasonable grounds to suspect”, as set out in s. 492.2(1), at that time. I will address the legal principles applicable to “reasonable grounds to suspect”, in the context of the review of DNR 1, below.

[41] On an evidentiary hearing such as this, the task of the reviewing judge is to determine whether the ITO (or affidavit) in support of the warrant (or authorization) contains sufficient reliable evidence that might reasonably be believed on the basis of which the warrant could have been issued (or the authorization could have been granted): see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. If so, the reviewing judge should not interfere. The review does not constitute a de novo hearing of the original application. In determining the sufficiency of an ITO or an affidavit in support of an authorization, the question is not whether the reviewing judge would have issued the subject warrant or authorization. Instead, the reviewing judge must determine based on the record that was before the issuing justice or authorizing judge, as may be amplified and/or excised on review, whether the warrant or authorization could properly have been issued or granted. If there was sufficient evidence that “could have” permitted the issuing justice or authorizing judge to conclude that the necessary statutory pre-conditions for the issue of the warrant or the grant of the authorization were met, the reviewing judge should not interfere: see R. v. Garofoli, [1990] 2 S.C.R. 1421, at 1452, 1990 CanLII 52 (S.C.C.).

[42] An applicant for a warrant or authorization has a duty to make full, frank and fair disclosure of all material facts in the ITO or affidavit supporting the request: see R. v. Araujo, 2000 SCC 65, at para. 46, [2000] 2 S.C.R. 992. The obligation of the informant or the affiant is “to present all material facts, favourable or not”: see Morelli, at para. 58.

[43] In the review process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the issuing justice or authorizing judge: see Garofoli, at 1452.

[44] Where information in an ITO or affidavit is erroneous, assuming there has been no deliberate attempt to mislead the issuing justice, the erroneous information is excised from the ITO or affidavit but it may be amplified on review by evidence showing the true facts, subject to the requirement that unconstitutionally obtained evidence cannot be considered. If sufficient information to support the warrant or authorization remains after excising erroneous information, amplification is unnecessary: see Araujo, at paras. 56–58. Evidence relied upon to amplify the record must have been available to the investigators at the time the ITO was sworn, not information that was acquired later in the investigation: see Morelli, at para. 43.

[45] In determining whether a warrant should issue or an authorization should be granted, the issuing justice or authorizing judge may draw reasonable inferences from the contents of the ITO: see R. v. Nero, 2016 ONCA 160, at para. 71, 334 C.C.C. (3d) 148. The task of the reviewing judge is not to substitute his or her own inferences for those available to the authorizing judge, rather the reviewing judge’s only mandate is to determine whether the inferences drawn by the issuing justice or authorizing judge were reasonable: see R. v. Sadikov, 2014 ONCA 72, at para. 72.

[46] In conducting its review, the court must proceed with an appreciation that the justice who issued the warrant made his or her decision based on the contents of the ITO as a whole, in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from that content: see Sadikov, at para. 82. Accordingly, the review requires a contextual analysis of the entire record and not a piecemeal dissection of individual items of evidence, in the search for alternative exculpatory inferences: see Nero, at para. 68.

V) SUMMARY OF RULINGS ON APPLICATION

[47] For the reasons that follow, I am satisfied that in the case of each of the “DNR authorizations”, the issuing judge had before him a record that contained reliable evidence that might reasonably be believed and upon which the issuing judge, acting reasonably, could have been satisfied of the existence of the statutory pre-conditions required for the warrants to issue.

[48] Therefore, I find that each of the “DNR authorizations” was valid and evidence obtained as a result of the execution of those authorizations was lawfully obtained.

[49] Further, in the totality of the circumstances I am satisfied that the record before Patterson J. contained reliable evidence that might reasonably be believed and upon which he, acting reasonably, could have been satisfied of the existence of the statutory pre-conditions required to grant the s. 186 authorization and related orders.

[50] Therefore, I find that the s. 186 authorization and related orders and warrants were valid and the information and evidence obtained as a result of the execution of the authorization and related orders and warrants was lawfully obtained.

[51] Mr. Locknick’s rights under s. 8 of the Charter were not violated in the context of any of the DNR authorizations, or the execution thereof, and Mr. Locknick’s and Mr. Garrity’s s. 8 rights were not violated in the context of the s. 186 authorization or the execution thereof. The applicants have failed to discharge their onus to prove otherwise.

VI) DETAILED RULINGS ON APPLICATION

A. DNR 1 – Issued on April 15, 2013

[52] DNR 1, which was issued by Hoffman J., on April 15, 2013, authorized the use of dialed number records for a mobile phone used by Michael Stiller and a landline associated with 961 Edward Avenue, Windsor, Ontario (the residence of Mr. Locknick’s girlfriend, Felicia Doucet and Mr. Locknick’s own residence prior to his incarceration in April, 2012 for matters unrelated to the charges before the court), and associated assistance orders, together with an order for the production of historical telephone records associated with the Stiller and Doucet numbers (dating back to January 1, 2013) and a tracking device on a vehicle said to be used by Mr. Stiller.

(i) The ITO in support of DNR 1

[53] The warrant issued on evidence sworn in an ITO by P.C. Hamlin on April 13, 2013, which is detailed below.

a) Overview of Investigation

[54] In the initial portion of his ITO, P.C. Hamlin provides a contextual overview of the police investigation as follows.

[55] In October 2012, P.C. Hamlin was advised by Windsor Police Constable Paterson that he received information from a confidential informant indicating that Mr. Locknick and Mr. Stiller are “multi-ounce level cocaine dealers” in the City of Windsor. Despite being incarcerated at the Windsor jail, Mr. Locknick was said, by the confidential informant, to use several people to traffic cocaine at his direction, including “his girlfriend Felicia” and Michael Stiller.

[56] During the course of P.C. Hamlin’s subsequent investigation, he received additional confidential informant information that Mr. Locknick’s trafficking activities were facilitated by collect calls that he made to Ms. Doucet’s home landline (at 519-974-9902) from the Windsor jail. The informant information indicated that Ms. Doucet would then use a three-way calling feature on her phone to place Mr. Locknick in contact with third parties, in order for Mr. Locknick to arrange delivery of narcotics by Mr. Stiller and other associates. Additionally, during police surveillance and consistent with confidential informant information, Mr. Stiller was observed to operate a grey 2000 Chrysler 300M vehicle while engaging in activity consistent with both counter surveillance measures and hand to hand narcotic trafficking.

b) P.C. Hamlin’s Subjective Belief

[57] P.C. Hamlin deposes to his subjective belief that Felicia Doucet, Michael Stiller and Wayne Locknick are involved in the illegal distribution of cocaine. Specifically, he states that he believes that Mr. Locknick, who was incarcerated in the Windsor jail, was arranging for the supply and distribution of controlled substances by placing collect calls to Ms. Doucet’s landline at 961 Edward Avenue, who would then arrange three-way calls to Mr. Locknick’s suppliers and distributors. P.C. Hamlin believed that Mr. Stiller was one of Mr. Locknick’s distributors and was using the Chrysler vehicle to facilitate drug trafficking.

[58] P.C. Hamlin believed that data from dialed number recorders on the Doucet landline and the cell phone used by Mr. Stiller would be useful in determining Mr. Locknick, Mr. Stiller and Ms. Doucet’s communications with each other and other persons, which he believed would assist police in determining potential buyers, suppliers and partners or co-conspirators of Locknick, Stiller and/or Doucet. He believed such data would provide valuable information concerning the activities of Mr. Locknick, Mr. Stiller and Ms. Doucet in relation to illegal drug activities and would provide exact times that calls were placed between Mr. Locknick and Ms. Doucet and Ms. Doucet and Mr. Stiller and other associates. The times would serve to identify the exact duration of calls placed which would then be used, in conjunction with information obtained through a production order, to identify potential messages between Ms. Doucet and Mr. Stiller and other associates as they relate to trafficking in narcotics.

c) Details of the Content of the ITO

[59] In support of the application for DNR 1, P.C. Hamlin deposes, among other things, that:

On a day in October, 2012, more specifically, October [OMITTED], 2012, I received the following information from Constable PATERSON. Constable PATERSON advised that he received this information from Informant #1 on a day in October, more specifically October [OMITTED], 2012:

a) LOCKNICK is currently incarcerated at the Windsor Jail. He is on B Range. (Corroboration: I contacted County Jail and learned that LOCKNICK has been incarcerated at the County Jail since April 2012 and is assigned to B Range)

b) LOCKNICK continues to use his associates to traffic cocaine.

c) LOCKNICK is three-way calling to do all his drug dealing while he is in the County Jail.

d) He uses several numbers to do the three-way calling including Felicia, his girlfriend’s number.

e) Mike STILLER is running cocaine for Wayne.

f) STILLER drives a grey Chrysler 300, BNMH 091.

g) STILLER’s number is 519-790-8475

h) LOCKNICK talks openly on the phones at the County Jail and doesn’t hide what he is doing.

i) LOCKNICK arranges meetings from the County Jail and LOCKNICK’s associates including STILLER, will sell and distribute cocaine for LOCKNICK.

j) Source A was to meet with STILLER to purchase a quantity of cocaine however the meeting was put off [OMITTED]. More specifically, Source A arranged to purchase [OMITTED] cocaine.

k) LOCKNICK sells high quality cocaine, more specifically he sells [OMITTED].

[60] P.C. Hamlin further deposes that: Informant #1 is well versed in “drug sub-culture”; Informant #1 obtained information that pertained to the investigation as a result of direct contact with a person or persons involved in the investigation [the specific number of persons with whom Informant #1 had direct contact is redacted]; Informant #1 has also provided information to police in the past that led to the execution of an unspecified number of search warrants where persons were charged, the drugs named were seized and charges were pending before the court; Informant #1 provided information pertaining to other criminal activity, which was verified through other investigative means including but not limited to surveillance, Versadex (Windsor Police Service “in-house” records management system) and CPIC queries; and Informant #1 had no convictions for crimes of dishonesty.

[61] P.C. Hamlin conducted a Versadex query with respect to Mr. Locknick, which revealed that William Anthony Locknick had 70 recorded contacts with Windsor Police Service, five of which were drug related. A CPIC query revealed that Mr. Locknick was currently accused of a drug offence, a number of firearms offences and a number of breach offences. He was also the subject of a firearms prohibition as a result of a conviction of possession of a controlled substance for the purpose of trafficking. The specific offences are set out in the ITO.

[62] A Versadex query with respect to Mr. Stiller revealed that Michael Lucien Stiller had 63 recorded contacts with Windsor Police Service, two of which were drug related. At the time of the application, Mr. Stiller was accused of possession of a controlled substance for the purpose of trafficking and a number of firearms related offences. Mr. Locknick was listed as an associate of Mr. Stiller in the Versadex system. The specific offences are set out in the ITO.

[63] During surveillance of Mr. Stiller on October 25 and 26, 2012, he was observed to operate the Chrysler 300M vehicle identified by Informant #1.

[64] In October 2012, Informant #1 advised Constable Paterson that he had purchased a specified but redacted amount of cocaine from Mr. Stiller in a parking lot.

[65] On October 30, 2012, police determined that the registered subscriber to the cellular number that Informant #1 attributed to Mr. Stiller was “Todd Smith”, with no street address provided. P.C. Hamlin states that in his experience it is not uncommon for persons involved in the sale of illicit drugs to utilize mobile phones and to register those phones in another person’s name or a fictitious name, in order to avoid police detection.

[66] P.C. Hamlin conducted a Versadex query of Felicia Doucet which revealed three contacts with Windsor Police, one of which was drug related. As of April 18, 2012, Ms. Doucet was identified in the Versadex database as “Wayne Anthony Locknick’s girlfriend”. P.C. Hamlin conducted a CPIC query of Felicia Doucet which revealed that she was currently accused of possession of a controlled substance for the purpose of trafficking and a number of firearms offences. He states “As a result of these charges, DOUCET has conditions which include but are not limited to, “not com-assoc-contact (in) directly Wayne LOCKNICK.”” Ms. Doucet did not have a criminal record.

[67] In January 2013, Constable Paterson advised P.C. Hamlin that in December 2012, Informant #1 advised him that he/she purchased a specified but redacted amount of cocaine from Mr. Stiller in December 2012. Constable Paterson subsequently advised P.C. Hamlin that he received further information from Informant #1 that he/she purchased a specified but redacted amount of cocaine from Mr. Stiller in January 2013.

[68] Police conducted surveillance of Mr. Stiller on January 21, 2013. He was observed to attend the county jail in Windsor from 5:07 p.m. to 5:57 p.m. He exited the jail with an unknown male. Mr. Stiller left the jail in the previously identified Chrysler 300M. The unknown male left in a vehicle that was affixed with a licence plate determined to be registered to an individual named Kyle McKnight. A Versadex query of Kyle McKnight revealed that he had 49 recorded contacts with Windsor Police Service, two of which were drug related. A CPIC query with respect to Mr. McKnight revealed that he was prohibited from possessing firearms as a result of a conviction of possession of a controlled substance for the purpose of trafficking and other firearms related offences.

[69] Mr. Stiller was the subject of additional surveillance in late January 2013, the details of which were provided in the ITO and include:

a) the specifics of Mr. Stiller’s driving habits which police surveillance team members observed to be consistent with counter-surveillance techniques;

b) he is frequently seen attending a residential home located on Tourangeau Ave. (not his own residence) which police identified as a possible “stash house”;

c) On January 30, 2013, he briefly met in the parking lot of a gym with an individual known by police to be a “drug dealer”, within the City of Windsor;

d) On January 30, 2013, Mr. Stiller parked in a Tim Horton’s parking lot. Within minutes, a second vehicle pulled up next to Mr. Stiller. Mr. Stiller exited the vehicle and entered the second vehicle. A minute later, he exited and the second vehicle then left the parking lot.

[70] On February 11, 2013, P.C. Hamlin spoke with a “representative from the Windsor jail” and requested a copy of Mr. Locknick’s visitor log from January 1, 2013 to February 11, 2013, for the purpose of corroborating a visit between Mr. Locknick and Mr. Stiller on January 21, 2013. On February 14, 2013, the Windsor jail representative (who is not otherwise identified in the ITO) provided P.C. Hamlin with a list of names of individuals who had visited Mr. Locknick at the jail since January 1, 2013, together with the dates of their respective visits. The list indicates that Mr. Stiller and Mr. McKnight visited Mr. Locknick on January 21, 2013. The list also reveals that Ms. Doucet visited Mr. Locknick on four separate occasions between January 1, 2013 and February 14, 2013.

[71] P.C. Hamlin deposes that the visitor log confirmed that Mr. Locknick remains in contact with Felicia Doucet “although they are bound by court imposed conditions to abstain from communicating with each other”. He also deposes that the visitor log served as confirmation of the surveillance observation of Mr. Stiller’s attendance at the Windsor jail on January 21, 2013, in the presence of a man who left the area in a vehicle registered to Kyle McKnight.

[72] In February 2013, P.C. Hamlin entered a direct informer/handler relationship with Informant #1. Informant #1 advised him that he/she purchased a specific quantity of cocaine from Mr. Stiller in February 2013.

[73] In March 2013 P.C. Hamlin was advised by Windsor Police Constable Nurmi that he had received information from a second confidential informant (Informant #2) that pertained to the investigation. Informant #2 is said to be well versed in the drug sub-culture. Informant #2 is said to have obtained information pertaining to the investigation as a result of direct contact with a specified but redacted number of person(s) involved in the investigation. Informant #2 has provided information which has led to other active criminal investigations and has provided information pertaining to other criminal activity that has been verified through other investigative means including surveillance, Versadex and CPIC queries. Specific information in that regard was set out in the ITO, but redacted. Informant #2 has criminal convictions for crimes of dishonesty.

[74] Informant #2 provided information that:

(a) In a heavily redacted averment, Wayne Locknick was associated with a large seizure of drugs, three kilos of cocaine, two of which were his;

(b) The seizure cost Mr. Locknick $200,000;

(c) Mr. Locknick’s partner is Brad Brown;

(d) Mr. Locknick is trying to run his drug business by using three-way calls from the county jail;

(e) To do so, Mr. Locknick three-way calls his home number 519-974-9902.

[75] Subsequent police investigation revealed that the specified “home number” for Mr. Locknick that was provided by Informant #2, was associated with a landline provided by Bell Ontario, with its registered subscriber identified as “Douceg F.” of “961 Edward Avenue, Windsor, Ontario”. P.C. Hamlin deposes that prior investigation revealed that Felicia Doucet’s home address is 961 Edward Avenue, and he believed that the name revealed by the subscriber check – “Douceg” – was the result of a type-written error and the actual subscriber for the specified phone number was Felicia Doucet.

[76] In an effort to corroborate information from Informant #2, P.C. Hamlin provides information that on February 16, 2013 members of the Windsor Police Drug and Gun Unit executed a CDSA search warrant at 715 Josephine Avenue in Windsor, Ontario. The execution of the warrant resulted in the seizure of more than three kilograms of cocaine. P.C. Hamlin does not provide information that a police investigation connected Mr. Locknick with the seizure at 715 Josephine Avenue nor information that Mr. Locknick was charged with any offences arising out of the seizure at 715 Josephine Avenue.

[77] P.C. Hamlin states that an individual named Victor Anber was arrested in relation to the execution of the 715 Josephine Avenue warrant. A Versadex query revealed that Mr. Anber was listed as an associate of an individual named Bradley Brown (said by Informant #2 to Mr. Locknick’s partner).

[78] P.C. Hamlin deposes that from his previous professional dealings and his experience in the Drug and Gun Enforcement Unit, together with information shared by other members of the Windsor Police Drug and Gun Unit and Criminal Intelligence Unit, that Bradley Brown is a high-end drug dealer. A Versadex query of Bradley Brown revealed that he had 149 recorded contacts with Windsor Police, seven of which were drug related. Bradley Brown’s recorded known associates included Wayne Anthony Locknick. Michael Stiller was listed as a friend of Brad Brown. A criminal record search revealed that Mr. Brown has a lengthy criminal record which includes two convictions for possession of a Schedule II substance, a conviction for possession of a Schedule I substance for the purpose of trafficking and two convictions for possession of a Schedule II substance for the purpose of trafficking.

[79] In April 2013, Informant #1 advised P.C. Hamlin that he/she purchased a specified but redacted quantity of cocaine from Mr. Stiller, who was still driving the identified Chrysler 300M and who was still utilizing the same mobile phone number that Informant #1 disclosed in October 2012.

[80] Based on the foregoing information and the surveillance conducted, P.C. Hamlin deposes to his subjective belief that Michael Stiller and Felicia Doucet are trafficking in illegal drugs for Wayne Locknick. At para. 67 of the ITO he specifically states “surveillance, in addition to county jail records, have corroborated the three people are in communication with each other”.

[81] At para. 68 of the ITO P.C. Hamlin states “both STILLER and DOUCET have visited LOCKNICK on several different occasions at the county jail, even though DOUCET has a court imposed non-association order with LOCKNICK”.

[82] At para. 75 of the ITO, P.C. Hamlin deposes:

I believe that Michael STILLER and Felicia DOUCET are actively trafficking in cocaine. I also believe that STILLER is utilizing the mobile phone number 519-790-8475 and Felicia DOUCET is utilizing her home phone number 519-974-9902…

[83] Finally, at para. 78 of the ITO under the heading “Conclusion” P.C. Hamlin deposes:

Based on the contents of this affidavit, I believe that Wayne LOCKNICK, Michael STILLER and Felicia DOUCET are involved in the illegal distribution of cocaine…I also believe that DOUCET is residing at 961 Edward and receives collect calls from LOCKNICK on her landline number 519-974-9902, to arrange a three-way call to his suppliers and distributors. DOUCET also visits Wayne LOCKNICK frequently at the Windsor Jail to arrange the distribution of illegal narcotics.

(ii) Additional Evidence Adduced on Review

[84] During the application, Mr. Locknick adduced additional documentary evidence and the viva voce evidence of Ms. Doucet and Mr. Locknick’s co-accused, Ms. Gatt, which was primarily related to the issues of: standing; reasonable apprehension of bias; establishing that information in the ITO about the non-association order was erroneous; and establishing that the prisoner visitor log information was obtained by police through unconstitutional means.

a) Mr. Locknick’s Evidence

[85] Generally, Mr. Locknick testifies that on and before April 17, 2012, he resided at 961 Edward Avenue with his “on again/off again” common-law partner, Felicia Doucet and their young daughter. Ms. Doucet was the titled owner of the Edward Avenue residence in April 2012. She acquired that property in January 2012, which is when she, Mr. Locknick and their daughter moved into the home.

[86] On April 17, 2012, Mr. Locknick was arrested, away from his residence and a CDSA warrant was subsequently executed at 961 Edward Avenue. As a result of the events of April 17, 2012, Mr. Locknick was charged with multiple firearms offences, a CDSA offence, a number of breaches of the terms of a recognizance he had previously entered into, and a failure to comply with an officer in charge undertaking he had previously given.

[87] Ms. Doucet was also charged with a number of firearms related offences and a CDSA count, after the execution of the search warrant on April 17, 2012. She applied for and was granted bail. One of her original bail conditions prohibited her from communicating with Mr. Locknick. She subsequently applied for and received a variation to that condition, which permitted them to communicate about their child. Mr. Locknick and Ms. Doucet did not communicate with each other prior to the bail variation.

[88] Mr. Locknick never returned to the Edward Avenue residence after his arrest in April 2012. At the time of his arrest in April 2012, Mr. Locknick was facing unrelated criminal charges and was released on bail. As a result of his arrest, his bail was revoked. He did not re-apply for bail. Instead, he remained incarcerated at the “county jail” in Windsor, housed on the B range, for approximately 19 months.

[89] In June 2013, Mr. Locknick was transferred to a jail in Sarnia, Ontario, where he remained until July 16, 2013. At that time, he was returned to Windsor to be sentenced following a guilty plea to some of the charges laid against him on April 17, 2012. He remained in jail in Windsor, on the B range, from July 16, 2013 to November 2013. At that time, he was transferred to a jail facility in London, Ontario where he remained until December 21, 2015, when he was released on bail in relation to the charges before the court. Ms. Doucet disposed of the Edward Avenue residence prior to his judicial interim release.

[90] According to Mr. Locknick, there were two “payphones” enclosed in the prisoner area of the Windsor jail’s “B range”. Inmates were only able to make outgoing calls from those phones, and then only by placing a collect call to a landline telephone number provided by Bell Canada. In order to facilitate communication with him while he was on B range, Ms. Doucet subscribed to a Bell landline for 961 Edward Avenue. Once the landline was installed, Mr. Locknick would call Ms. Doucet, collect, from a B range payphone. If he wanted to talk to someone else, she would forward his call to her cell phone so she could engage three-way conference calling to allow him to contact anyone he wanted. Mr. Locknick used this arrangement to communicate with “everyone” including his daughter, his other family members and his “business associates”. When he spoke with “business associates”, Ms. Doucet would always put the phone down. He would blow hard into the phone to signal her when the call was over.

[91] Ms. Doucet also facilitated Mr. Locknick’s calls to third parties, by using the Edward Avenue landline and three-way conference calling, while he was incarcerated in the Sarnia jail, where he would use payphones on “4 block” to make collect calls to the landline.

[92] Mr. Locknick believed that his calls from both the Sarnia jail and the Windsor jail were private.

[93] Mr. Locknick received visitors at the Windsor jail from time to time. He assumed jail authorities documented the visits in some manner, however, he never authorized jail authorities to release information about the identity of his visitors to anyone, and he did not expect such information to be disseminated.

b) Ms. Doucet’s Evidence

[94] Ms. Doucet confirms that she was arrested on April 17, 2012 and subsequently released on bail. The conditions of her release included a prohibition against communicating or associating with Mr. Locknick. In May 2012 she sought and was granted a variance to those conditions, which permitted her to communicate and associate with Mr. Locknick, in relation to their young daughter. Some time later, the association condition was further varied to permit full communication between Mr. Locknick and Ms. Doucet.

[95] Until it was varied in May 2012, Ms. Doucet complied with the non-association condition. Once the condition was varied, she obtained a Bell landline at 961 Edward Avenue, for the purpose of communicating with Mr. Locknick over the telephone. Mr. Locknick frequently used the payphones on B range to place collect calls to the telephone number of the landline at 961 Edward, in order to speak with Ms. Doucet and his daughter.

[96] In order to facilitate timely receipt of Mr. Locknick’s calls, Ms. Doucet forwarded the incoming landline telephone calls to her cell phone number. Ms. Doucet would frequently facilitate Mr. Locknick’s telephone communication with other third parties by engaging the three-way calling feature of her cell phone and “dialing in” specific individuals at Mr. Locknick’s direction and request. Mr. Locknick and Ms. Doucet utilized the same method of communication when Mr. Locknick was incarcerated at the Sarnia jail.

[97] Ms. Doucet did not listen to the content of Mr. Locknick’s communications with third parties. Instead, she placed the phone down. Mr. Locknick would make a loud noise when he was done speaking in order to signal her to pick up the phone.

[98] Ms. Doucet and her daughter visited Mr. Locknick at the Windsor jail, from time to time.

[99] Both Ms. Doucet and Ms. Gatt gave evidence with respect to the procedures they were respectively required to follow when visiting inmates at the Windsor jail, in and around 2012 and 2013. They would identify themselves and the inmate they wished to visit, to a guard situated behind a metal screen. They were required to provide the guard with identification. Eventually the identification would be returned and they would be granted access to a “semi-private” visiting room where visitors and inmates were separated by panes of glass. Other members of the public and other inmates were permitted to be in the visiting room during the time of their visits.

(iii) Mr. Locknick’s Challenges to the ITO in Support of DNR 1

(a) The Asserted Challenges to the ITO’s Content

[100] Generally, Mr. Locknick posits that the ITO sworn by P.C. Hamlin is limited to providing evidence to support a “reasonable suspicion” that Mr. Stiller was engaged in criminality and that information that would assist in the investigation of Mr. Stiller’s suspected criminality could be obtained through the use of a number recorder with respect to the cell phone that he used and a tracking device on the vehicle he used.

[101] More particularly, once inaccurate and unlawfully obtained evidence are excised from the ITO, the remaining content fails to establish a nexus between Mr. Stiller’s alleged criminality and the activities of either Mr. Locknick or Ms. Doucet. Further, the remaining content fails to establish reasonable grounds to suspect that either Mr. Locknick or Ms. Doucet committed, or would commit an offence, under the Code or any other act of Parliament, or that information that would assist in the investigation of such an offence could be obtained through the use of a number recorder on the landline at 961 Edward Avenue.

[102] In support of his position, Mr. Locknick advances the following challenges to the ITO’s content:

1. Throughout the ITO, P.C. Hamlin repeatedly refers to Ms. Doucet communicating with Mr. Locknick despite being bound not to do so by a non-communication condition. However, P.C. Hamlin did not provide the issuing judge with information that the non-communication condition was varied to permit communication between Mr. Locknick and Ms. Doucet, approximately 11 months prior to the ITO being sworn in April 2012. The inclusion of inaccurate information with respect to an order prohibiting communication between Ms. Doucet and Mr. Locknick and the unfounded allegation that they continued to communicate despite the existence of the order, invited the issuing judge to draw an inference that Mr. Locknick and Ms. Doucet were engaged in improper and illegal activity. Therefore, that information had the potential to mislead the issuing justice;

2. The ITO does not contain any direct information connecting Mr. Stiller and Ms. Doucet, at all. It does not contain any direct information establishing contact between Mr. Stiller and Ms. Doucet, at any time. P.C. Hamlin’s statement in para. 67 of the ITO that “surveillance, in addition to county jail records have corroborated the three people (Locknick, Doucet and Stiller) are in communication with each other” is false and misleading and ought to be excised.

3. P.C. Hamlin’s statement at para. 67 of the ITO that “I believe that based on the information received and surveillance conducted, Michael Stiller and Felicia Doucet are trafficking in illegal drugs for Wayne Locknick” is false and misleading and ought to be excised. Mr. Locknick does not dispute that the activities of Mr. Stiller, which were the subject of police surveillance, are consistent with drug trafficking activity. However, the inference sought by P.C. Hamlin, through the foregoing statement, is that Mr. Stiller’s activity is somehow linked to Ms. Doucet and Mr. Locknick, when, in fact, police made no observations of Mr. Stiller and Ms. Doucet interacting, at any time.

4. All of the information concerning Mr. Locknick’s visitors at the county jail in Windsor, and the respective dates of their visits, must be excised from the ITO because it was obtained unlawfully.

Section 10(1) of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the Act), provides that every person employed in the administration of that Act shall preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties and employment and shall not communicate any such matters to any other person, except in accordance with the provisions of the Act and related regulations.

The Act and relevant related regulations prescribe certain circumstances in which information, including personal information with respect to an inmate, may be disclosed for a number of purposes, including law enforcement and the administration of justice, by a person who is designated to make such disclosure. There is no evidence that the “representative from the Windsor jail” who provided P.C. Hamlin with information concerning Mr. Locknick’s visitors and the dates of their visits was designated to disclose that information. P.C. Hamlin’s request and receipt of that information from a “representative from the Windsor jail” constituted a search. In the absence of evidence that such disclosure was made in accordance with the provisions of the Ministry of Correctional Services Act and related regulations, the search was not authorized by law and was, therefore, “unreasonable” and violated Mr. Locknick’s rights pursuant to s. 8 of the Charter.

5. There is no evidence of a connection or contact between Mr. Locknick and Mr. Stiller in the ITO, other than the unlawfully obtained “jail visitor log” information. The general observation that Mr. Stiller visited the county jail in Windsor on a specific date in January 2013, while Mr. Locknick was incarcerated at the Windsor jail, is not sufficient to support an inference that the two had contact on that date, or that Mr. Stiller’s visit was in any way connected with Mr. Locknick.

6. Mr. Locknick submits that the information developed from Informant #1 cannot support a “reasonable suspicion” that he or Ms. Doucet committed or would commit the offences identified in the ITO. First, the information from Informant #1 that implicated Mr. Locknick and Ms. Doucet in the commission of any offences, was approximately six months old at the time P.C. Hamlin swore the ITO. Second, the police conducted an ongoing investigation concerning the information provided by Informant #1 that only resulted in evidence tending to confirm that Mr. Stiller was engaged in criminal conduct. The ongoing investigation failed to elicit any confirmatory information that Mr. Locknick and Ms. Doucet were engaged in criminal conduct.

7. With respect to the information provided by Informant #2, P.C. Hamlin mislead the issuing judge by characterizing an unrelated police seizure at a residence located at 715 Josephine Avenue on February 16, 2013 as “corroboration” of Informant #2’s information that Mr. Locknick was associated with a large seizure of cocaine. Mr. Locknick was incarcerated at the time of the Josephine Avenue seizure and, in any event, nothing in the ITO evidences that Mr. Locknick was associated with any of the contraband seized from 715 Josephine Avenue on February 16, 2013, or that he was associated with that location, in any manner.

[103] Mr. Locknick submits that the offending portions of the ITO in support of DNR 1 are repeated in the ITOs in support of DNR 2, DNR 3 and DNR 4 and the affidavit in support of the wiretap authorization, respectively, and must be excised from each.

[104] Mr. Locknick also asserts two additional challenges to the issue of DNR 1 that extend beyond a review of the content of the supporting ITO. One challenge is founded in the conduct of the issuing judge and the other is founded in the standard the issuing judge applied when granting the application for DNR 1. I will address those concerns before disposing of Mr. Locknick’s challenges that arise from the specific content of the April 13, 2013 ITO.

(b) Allegations of Reasonable Apprehension of Bias

[105] Mr. Locknick submits that in all the circumstances, the conduct of the judge that issued all of the DNR warrants raises a reasonable apprehension of bias. His submission is founded in correspondence authored by the issuing judge, Hoffman J. of the Ontario Court of Justice, dated April 9, 2013, which was addressed to P.C. Hamlin’s attention. The correspondence was written in response to an initial application for DNR 1 made by P.C. Hamlin on April 9, 2013, which did not result in a warrant being issued, and it addresses the content of the ITO in support of the application. DNR 1 was granted as a result of P.C. Hamlin’s third application for the warrant. Each application was made to Hoffman J. The ITO filed in support of the third application addressed many of the issues identified in Hoffman J.’s correspondence.

[106] Generally, the applicant submits that through the content of his correspondence, the issuing judge went beyond simply identifying problems in the ITO, because he also provided “suggestions and solutions” to the problems that he identified. In the applicant’s view, the issuing judge’s approach deviates from the standard articulated in Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, which mandates that where a search is conducted in accordance with prior judicial authorization, it is essential that the authorization be granted in an independent and neutral manner. Specifically, the applicant posits that through his conduct, Hoffman J. inserted himself into the warrant application process and assumed the role of a de facto legal advisor to the police. As a result, he says that either the warrant should be quashed or every paragraph of the ITO that was identified in Hoffman J.’s correspondence ought to be excised, for the purpose of review.

[107] In order to fully appreciate the applicant’s submission in this regard, some contextual background is warranted.

[108] P.C. Hamlin originally applied to Justice Hoffman on April 9, 2013, for a warrant consistent with the terms of DNR 1. His application was supported by an ITO that he swore that day, which is substantially similar in its content and structure to the ITO P.C. Hamlin swore on April 13, 2013 (the April 9, 2013 ITO is located at tab 10 of the respondent’s record). Hoffman J. did not issue the warrant at that time. Instead, he directed correspondence to P.C. Hamlin dated April 9, 2013, stating:

Attention P.C. Hamlin WPS

April 9/13 10:45 PM

Re Warrant request J306

If you decide to make any alterations and resubmit this please include a copy of this document as well as the original warrant submitted today. For security reasons I do not keep copies of either.

As well add a note indicating which paragraphs have been altered to assist me in my re-review.

1. Paragraph (Par) 15 – I do not understand what the sentence “I have summarized the aspects of the informants” means.

a. Par. 15 – ‘crimes of dishonesty’ must include at least all theft related offences, fraud related offences, perjury related offences, personation related offences as well as obstruct police and obstruct justice.

b. Par 15 re reliability of Informant #1 – (a); best to differentiate if possible between information obtained from direct contact with persons involved and other sources if this can be done and if it does not jeopardize revealing Informants ID.

c. Par 15 re reliability of Informant #1 – (f); best to differentiate between direct and indirect contact and explain how information can be obtained by indirect contact if this can be done and if it does not jeopardize revealing Informants ID.

2. Pars 17-18; Is Wayne Locknick the same person as Wayne Anthony Locknick but used different named query on different systems. If so please clarify?

3. Pars 19-20: same question as above for Mike Stiller and Michael Stiller.

4. Par 58 – Is Source A the same person as Informant 1 in par 15? Either way please clarify and if different nothing about reliability of Source A?

5. Par 59 a) – best to differentiate if possible between information obtained from direct contact with persons involved and other sources if this can be done and if it does not jeopardize revealing Informants ID.

a. Par 59 c) – Additional detail regarding how it has been verified may be more helpful.

b. Par 59 re negative consideration for Informant 2; crimes of dishonesty include ---------------- please standardize definition as outlined in par 15.

6. Par 60 a) – f): Did Informant #2 receive this information directly from Locknick or some other means if this can be revealed without jeopardizing the Informant identity?

7. Par 61 – How do you know Brown is a high level drug dealer?

8. Par 65 – Again is Source A the same person as Informant 1?

a. Re a), and b); Approximately when did this take place, even what year or within what period of time?

9. Par 67 – 69; Update these pars with any new information added further to these requests

[109] On April 10, 2013, P.C. Hamlin submitted a second application for a warrant consistent with the terms of DNR 1, which was supported by an ITO sworn that day. The April 10, 2013 ITO (located at tab 12 of the respondent’s record) addresses some, but not all, of the points enumerated in the correspondence set out above. The second application did not result in the issue of a warrant.

[110] P.C. Hamlin made his third application to Hoffman J. on April 13, 2013, supported by an ITO sworn that date, which resulted in DNR 1 being issued on April 15, 2013.

[111] Apart from the foregoing correspondence, there is no record of any communication between P.C. Hamlin and Hoffman J. between the time P.C. Hamlin made the first and second applications. There is no record of any communication between Hoffman J. and P.C. Hamlin between the second and third applications.

[112] The applicant submits that the circumstances that led to the issue of DNR 1 raise a reasonable apprehension that the judicial authorization for the number recorder for the 961 Edward Avenue landline was granted through less than impartial means. He posits that through his correspondence dated April 9, 2013, Hoffman J. not only summarized the aspects of the ITO that were deficient, he identified the manner in which P.C. Hamlin should alter the wording and content of the ITO to correct the deficiencies. In essence, Hoffman J. was actively involved in drafting and editing the content of the very ITO, that he relied on to issue the subject warrant.

[113] For the reasons that follow, I do not agree with Mr. Locknick’s characterization of Hoffman J.’s conduct. I find that in all of the circumstances, Mr. Locknick has failed to demonstrate “serious grounds” to rebut the strong operable presumption of judicial impartiality and, as a result, he has failed to establish a reasonable apprehension of bias attaching to Hoffman J.’s conduct, including the issue of DNR 1. I will explain.

(1) Applicable Legal Principles

[114] In Hunter v. Southam Inc., the Court emphasized that where a search is conducted in accordance with prior judicial authorization, it is essential that the authorization be granted in an entirely neutral and impartial manner. Relying, in part, on R. v. Gray, 1993 CanLII 3369 (MB CA), 81 C.C.C. (3d) 174 (Man. C.A.), the applicant suggests that Hoffman J.’s approach was less than “neutral and impartial”.

[115] In Gray, the evidence disclosed a troubling practice in the city of Winnipeg, Manitoba, whereby police officers seeking search warrants would routinely present draft unsworn ITOs to magistrates for “review”. If the draft was deemed unacceptable, the would-be issuing magistrate would specifically instruct the officer how to satisfactorily word the ITO, to enable the warrant to be issued. On some occasions, the magistrate would actually type the final version of the ITO, which would then be sworn by the officer, after all the suggested changes had been made.

[116] With respect to the specific search at issue in Gray, the Crown conceded both before the trial judge and the appellate court that the ITO in support of the subject warrant contained insufficient information to justify issuing the warrant. The Crown also conceded that the search, which had taken place as a result of the invalid warrant was unreasonable. The trial judge then determined that the evidence obtained as a result of the execution of the invalid warrant was admissible, despite the Charter breach.

[117] In concluding that the trial judge erred by admitting the evidence, the Manitoba Court of Appeal observed that by engaging in the practice described above, the magistrate operated as if “she were an agent of the police investigation rather than a neutral and detached assessor of the evidence advanced in favour of the granting of a warrant”. The court further held:

In my opinion, the impugned practice disclosed by the evidence resulted in the failure of the judicial officer to properly exercise her detached independent function. Where direction is given by a judicial officer respecting the contents of the information to obtain on a material point going to the merits of the application, he/she simply becomes an agent or arm of the police. It is not proper for the police to present a judicial officer with an unsigned or incomplete information to obtain and, after receiving inappropriate direction with respect not only to the technical language but also the substance of the document, to then swear it in its altered form before the same judicial officer. [Emphasis added.]

It is of course open to a magistrate hearing an application for a warrant and considering the evidence presented to identify deficiencies and to reconsider the application when these deficiencies have been remedied by the police. But that was not what took place in this case.

[118] In determining that the evidence warranted exclusion pursuant to s. 24(2) of the Charter, Chief Justice Scott held that the defect in the process disclosed by the evidence was a fundamental one, resulting in the breakdown of the system designed to protect an individual’s reasonable expectation of privacy because “it created a risk that a warrant would issue without an impartial judicial determination that reasonable and probable grounds existed to authorize the subject search and seizure.” Accordingly, the court concluded that allowing evidence obtained as a result of such a “fundamental defect in procedure” to be admitted, would bring the administration of justice into disrepute.

[119] The result in Gray was recently considered by the British Columbia Court of Appeal in R. v. Clark, 2015 BCCA 488, 330 C.C.C. (3d) 448 (leave to the Supreme Court of Canada granted), where the Court stated, at para. 58:

In my view, Gray does not stand for the proposition that any communication with respect to a material aspect of an ITO (or wiretap affidavit) is improper. Rather, it rests on the fact that magistrates in Winnipeg had become involved in the warrant-application process to the point where they had taken on the role of legal advisors to the police.

[120] The primary issue in Clark was whether the impartiality of a judicial justice (JJ) was compromised by the content of a conversation he had with a police officer seeking a telewarrant, prior to the warrant’s eventual issue. The trial judge concluded that the telewarrant was invalid, secondary to a finding that the JJ had inappropriately assisted the police officer in the preparation of the ITO, in the following circumstances.

[121] At 2:00 a.m., a police officer submitted an ITO to search the residence of a specified individual for evidence of theft of electricity, indicating that he was seeking a warrant to search the residence “by day”. At 2:10 a.m. the JJ contacted the officer and asked him to explain why the warrant application could not be made, in person, during the day. The officer provided his reasons for applying for the telewarrant, and the JJ directed him to ensure that those reasons were set out in the ITO. The officer then submitted a revised “appendix A” to the ITO, which included that information.

[122] The trial judge found that the JJ acted improperly, by engaging in a conversation that resulted in an additional paragraph being added to the ITO. As a result, the additional information was excised and the trial judge found that the remainder of the ITO did not satisfy the “impracticality requirement” necessary for the telewarrant to issue. As a result, the warrant was quashed and the trial judge held that: the search of the accused’s residence was warrantless; his rights under s. 8 of the Charter were infringed; and the admission of the resulting evidence would bring the administration of justice into disrepute.

[123] On appeal, the court accepted the Crown’s submission that the interaction between the JJ and the police officer did not impair the JJ’s judicial impartiality, nor did it render the warrant invalid. The court concluded that the JJ’s conduct was limited to advising the officer to fully set out his reasons for using the telewarrant procedure. The determination of whether the officer’s stated reasons were sufficient was a matter that the JJ had yet to consider. On the evidence, it was neither logical nor reasonable to find, by inference, that the presumption of judicial impartiality had been displaced. There was no basis on which to find the JJ had acted in a manner that was not in keeping with his office.

[124] In R. v. Lapple 2016 ONCA 289, at para. 20, [2016] O.J. No. 2026, the Ontario Court of Appeal held that while distinctions between an issuing justice identifying problems in an ITO and an issuing justice suggesting to police the method to solve such problems can be helpful in assessing a bias claim, the test remains: “whether a reasonable observer, fully informed of all of the relevant facts, would view the conduct of the Justice of the Peace as giving rise to a reasonable apprehension of bias.” [Emphasis added.]

[125] In Nero, at paras. 28–33, the Ontario Court of Appeal identifies five principles applicable to the determination of the existence of a reasonable apprehension of bias, in any particular case, which may be summarized as follows [citations omitted]:

1. The apprehension of bias must be reasonable, held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it. The test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?”; [Emphasis added.]

2. The standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality. The grounds for the apprehension must be substantial; [Emphasis added.]

3. As a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence;

4. The inquiry into a reasonable apprehension of bias is fact-specific and circumstance driven;

5. As a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so.

(2) The Principles Applied

[126] For the reasons that follow, I find that Mr. Locknick has failed to meet his onus to demonstrate a reasonable apprehension of bias on the part of Hoffman J.

[127] In all of the circumstances, I find that the purpose and effect of Hoffman J.’s correspondence was to obtain clarity and specificity with respect to certain aspects of the content of the April 9, 2013 ITO, in an effort to assess the reliability of elements of the information already set out therein, and to determine whether that information was sufficient to satisfy the requisite grounds to issue the warrant sought. For example:

1. In his April 9, 2013 ITO, P.C. Hamlin disclosed information regarding the extent to which Informant #1 and Informant #2 possessed convictions for “crimes of dishonesty”, which presumptively would be relevant to the issuing judge’s assessment of the reliability of information from those sources and the reasonableness of P.C. Hamlin’s stated beliefs that were formed, in part, in reliance on that information. P.C. Hamlin indicated that the phrase “convictions for crimes of dishonesty” referred to the “offences of fraud, personation, perjury, obstructing police and obstructing justice”. At para. 1(a) of his correspondence, Hoffman J. indicates that “crimes of dishonesty” must also include, at least, all “theft-related offences” together with the offences to which P.C. Hamlin had referred. Hoffman J. provided similar commentary with respect to Informant #2 at para. 5(b) of the correspondence. I find that in doing so, Hoffman J. was illiciting information that was necessary and directly relevant to his assessment of the reliability of information provided by Informant #1 and Informant #2. Through his correspondence, he identified the categorical nature of the information that he required, in order to assess whether the warrant should issue, but he did not otherwise direct or advise P.C. Hamlin about the specific substance or wording that ought to be utilized in a subsequent ITO, if any, in response to his inquiry. It remained P.C. Hamlin’s responsibility to determine if either informant had convictions that fell within the scope of Hoffman J.’s inquiry and, if so, to amend the content of the ITO accordingly;

2. In the ITO sworn April 9, 2013, P.C. Hamlin deposes at para. 15(a) that Informant #1 “has obtained most of the information from contact with the persons involved”. At para. 59(a), he deposes that Informant #2 “has obtained most of the information from direct contact with the persons involved”. At paras. 1(b) and 5(a) of his correspondence, Hoffman J. requests that P.C. Hamlin differentiate between information that was obtained from direct contact with persons involved and information derived from other sources, to the extent that it could be done, and to the extent that it did not risk identifying the informants. The extent to which information disclosed by confidential informants was sourced directly from persons involved was, potentially, relevant to his assessment of the reliability of that information and the reasonableness of P.C. Hamlin’s stated beliefs that were based, in part, on that information. His inquiries in that regard were not akin to drafting the content of the ITO nor did they impair his ability to act with objectivity and neutrality when considering the subsequent warrant applications made by P.C. Hamlin. The issuing judge was seeking greater specificity about information that P.C. Hamlin had already provided in the April 9, 2013 ITO. His inquiries, in that regard, did not go further than that.

3. At para. 60 of the ITO sworn on April 9, 2013, P.C. Hamlin deposes to information police received from Informant #2 about various activities said to involve Mr. Locknick. At para. 6 of the correspondence, Hoffman J. inquired about the source of Informant #2’s information and specifically whether it came directly from Mr. Locknick or through some other means (to the extent that information could be revealed without jeopardizing the identity of the informant). Again, that inquiry was designed to clarify the nature of information that had already been provided in the ITO, which was otherwise relevant to the assessment of its reliability.

4. At para. 61 of the April 9, 2013 ITO, P.C. Hamlin deposes that he “knows” that Brad Brown (an individual Informant #2 identified as Mr. Locknick’s “partner”) is a high-end drug dealer. At para. 7 of the correspondence, the issuing judge inquired about the source of P.C. Hamlin’s knowledge in that regard. Again, that inquiry was aimed at determining the reliability of information already provided in the ITO.

5. At paras. 67 through 69 of the April 9, 2013 ITO, P.C. Hamlin sets out his grounds to believe that information about the listed offences will be obtained through the use of the investigatory techniques for which judicial authorization was sought. At para. 9 of the correspondence, the issuing judge directs P.C. Hamlin to “Update these pars with any new information added further to these requests”. Hoffman J. did not specify or detail what, if any, additional information should be added in any subsequent ITO or whether the inclusion of any particular information would ensure that the warrant would issue. He did not inferentially or expressly direct the police to conduct additional investigation as a pre-requisite to granting the warrant requested. He did not indicate that any of paras. 67-69 had to be “updated” with new information as a pre-condition to granting the warrant requested. Indeed, the content of paras. 67-69 in the April 9, 2013 ITO remained unchanged in the April 13, 2013 ITO, which resulted in DNR 1 being issued.

[128] In all of the circumstances, I am unable to conclude that the issuing judge’s act of communicating, in writing, with the applicant for the warrant (P.C. Hamlin), at large, and/or the cumulative effect of the content of the April 9, 2013 correspondence that he authored, created a reasonable apprehension of bias in this instance. Unlike Gray, the judicial officer did not insert himself into the ITO drafting process in a manner designed to ensure the warrant would issue, by vetting and editing an unsworn draft ITO, or otherwise.

[129] In my view, there is nothing contained in Hoffman J.’s April 9, 2013 correspondence that, objectively, could be viewed as rendering him an agent or an extension of the police. Rather, the correspondence evidences that Hoffman J. was fulfilling his duty, as an issuing judge, in accordance with the principles articulated in Araujo, at para. 29, where LeBel J., details the role of a judge before whom an application for a wiretap authorization is being made, as follows:

Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests. The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant. He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague.

[130] The inquiries made by Hoffman J. are entirely consistent with the foregoing passage.

[131] Hoffman J. did not structure his inquiries in a manner that suggests that he was attempting to illicit specific responses and information from the police in order to ensure that the warrant would issue. While Hoffman J. questioned the specifics of certain information set out in the ITO, he did not suggest what the substantive content of the responses to his inquiries, if any, should be, in the event that police submitted a further ITO in support of a subsequent application. Similarly, he did not indicate that a warrant would necessarily issue if he received particular responses to his inquiries in a subsequent ITO, or at all. Instead, he sought clarification with respect to certain aspects of the information already provided in the April 9, 2013 ITO, which were designed to give him a greater appreciation of the reliability of the information already set out therein, so that he could make an impartial determination of the merits of the application. While he did not act as a functionary rubber stamp for the warrant sought by P.C. Hamlin, that does not lead to a finding that he acted with bias or that a reasonable apprehension that he did so, exists.

[132] Accordingly, I find the approach adopted by Hoffman J. did not result in his failure to properly exercise his detached independent function. Instead, it facilitated his ability to do so.

[133] In all the circumstances, I conclude that Mr. Locknick has failed to demonstrate “serious grounds” to rebut the strong operable presumption of judicial impartiality and, accordingly, has failed to meet his onus to demonstrate a reasonable apprehension of bias. In my view, in the context of the circumstances described above, in conjunction with an issuing justice’s duty as outlined in Araujo, I find that an informed person, viewing the matter realistically and practically – and having thought the matter through – would not view the conduct of Hoffman J. as giving rise to a reasonable apprehension of bias. Rather, such a person would conclude that he engaged in appropriate efforts to fully appreciate the nature and quality of the evidence relied upon in support of the warrant police sought to be issued.

[134] Therefore, the warrant ought not to be quashed and no excisions to the ITO are required as a result of this particular challenge.

(c) Allegations of Misapprehension of Statutory Pre-Requisites to Grant DNR 1

[135] The applicant also submits that DNR 1 should be quashed because the issuing judge misapprehended the statutory grounds required for a number recorder warrant to issue. For the following reasons, I disagree.

[136] At the time the DNR authorizations were granted, the requisite grounds to obtain a number recorder warrant were set out in s. 492.2(1) of the Code, which required that the issuing justice be satisfied that there were reasonable grounds to suspect that an offence under the Code or other federal statute had been or would be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder. Section 492.2(2) of the Code permitted a justice to order the production of telephone records to a person named in an order, when circumstances referred to in s. 492.2(1) existed. Thus, a production order for telephone records could issue on the standard of “reasonable grounds to suspect” as set out in s. 492.2(1).

[137] However, the typewritten recitals set out in the preamble to DNR 1, which was signed by Hoffman J., state, in part, that he was satisfied that there were “reasonable grounds” to suspect an offence under the Code or any other act of Parliament has been or will be committed and that information that is relevant to the commission of the offences, that were specified in the ITO, could be obtained through the use of, among other things a dialed number recorder and a production order for related telephone records.

[138] The applicant is troubled by the apparent discrepancy between the statutory requirement that the issuing justice be satisfied that “information that would assist in the investigation could be obtained” through the use of the investigatory technique for which authorization was sought and the standard of “information that is relevant to the commission of the offence could be obtained” through the use of that technique, as referenced in the warrant’s preamble.

[139] In my view, the identified discrepancy does not appreciably influence the disposition of the applicant’s challenge to DNR 1, or any subsequent warrant or authorization for two reasons.

[140] First, the stated grounds in the warrant’s preamble are consistent with the grounds required for the warrant to issue from a practical perspective. While the language of the preamble to the warrant, as issued, differs from the specific wording of the enabling section of the Code, I find the effect is the same. It is difficult to envision police obtaining evidence, through the use of a number recorder or a production order for telephone records that is relevant to the commission of the offences being investigated that would not otherwise be information that assists in the investigation of those offences.

[141] Second, the issuing judge’s alleged misapprehension of the grounds required to issue a number recorder warrant does not alter this court’s function, on review. Notwithstanding the recitals in the warrant’s preamble, this court must still determine whether the ITO, as may be amplified and excised on review, when read as a whole contains sufficient reliable evidence that might reasonably be believed, on the basis of which the number recorder warrant and production order could have issued. The review must be conducted through the lens of the statutory pre-requisites set out in s. 492.2 of the Code and not the standard articulated in the preamble to the warrant. The review will determine whether there was sufficient evidence before the judge to permit the warrant’s issue in accordance with the requisite statutory pre-conditions.

(iv) Required Excisions from the ITO

[142] I will now consider Mr. Locknick’s various challenges to the content of the ITO.

1. The ITO contained Inaccurate Information about the Non-Communication Order

[143] First, the viva voce evidence on the application establishes, and I accept, that although Ms. Doucet was subject to a non-communication/non-association order with respect to Mr. Locknick, as a term of her judicial interim release in April 2012, that condition was varied in May 2012 to permit communication between them. The non-communication condition was not in effect at the time P.C. Hamlin swore the ITO on April 12, 2013. Accordingly, P.C. Hamlin’s evidence on the point, starting at para. 27 of the ITO that “as a result of these charges, DOUCET has conditions which include but are not limited to, “non-com-assoc-contact (in) directly Wayne LOCKNICK” is inaccurate.

[144] The Crown submits the ITO should be “amplified” on review, to include information that the non-association order was a term of Ms. Doucet’s original release conditions and that it was varied in May 2012 to permit communication and association. I do not agree. There is no evidence that P.C. Hamlin was aware of the bail variation at the time the ITO was sworn. To the contrary, the content of the ITO suggests that P.C. Hamlin believed that the non-association order was operative, at that time. As a result, the portion of the last sentence of para. 27, starting with the phrase “which include”, remains inaccurate and must be excised.

[145] The inaccurate information with respect to the non-communication condition is repeated in paras. 57 and 68 of the ITO. As a result, the phrase “although they are bound by court imposed conditions to abstain from communicating with each other” from the first sentence under the heading “Corroboration” in para. 57 ought to be excised. Similarly, the phrase “even though DOUCET had a court imposed non-association with LOCKNICK” ought to be excised from the last sentence of para. 68 of the ITO. However, for other reasons which I will explain below, I am of the view that para. 57 and the last sentence of para. 68 ought to be excised from the ITO in their entirety.

2. The Visitor Log Information Provided by a “Representative from the Windsor Jail”

[146] I now turn to the information in the ITO about Mr. Locknick’s visitors at the correctional facility, which was provided to P.C. Hamlin by a “representative from the Windsor jail”. I accept Mr. Locknick’s submission that the information was obtained in a manner that infringed on his rights pursuant to s. 8 of the Charter. As a result, the information about Mr. Locknick’s visitors at the Windsor jail and the dates of their respective visits must be excised from the ITO, specifically: para. 57; the last sentence of para. 67; the last sentence of para. 68; and the last sentence of para. 78. I will explain.

[147] The Ontario Ministry of Correctional Services is responsible for the supervision, detention and release of the inmates of correctional institutions, parolees and probationers. The Ministry’s objectives include provision for the custody of persons awaiting trial or those convicted of an offence and the establishment, maintenance and operation of correctional institutions.

[148] Pursuant to s. 10(1) of the Ministry of Correctional Services Act (the Act), every person who is employed in its administration is obligated to preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties or employment and is prohibited from communicating any such matters to any other person except:

a) as may be required in connection with the administration of the Act and specified related statutes;

b) to the ombudsman of Ontario or Correctional Investigator of Canada;

c) in statistical form if the person’s name or identity is not revealed therein; and

d) with the approval of the Minister.

[149] In an oral ruling that Mr. Locknick has standing to challenge the “DNR authorizations”, I found that the statutory obligation to preserve secrecy of “all matters” that come to the knowledge of a person employed in the administration of the Act, in the course of his or her duties or employment, and the prohibition against communicating such matters, as set out in s. 10(1) of the Act, is sufficient to ground an inmate’s reasonable expectation of privacy in information collected by employees of a correctional institution about the identity of an inmate’s visitors and the respective dates of the visits, for the following reasons.

[150] Although information about the identity of Mr. Locknick’s visitors and the frequency and dates of their visits is biographical information about his associations, it is not necessarily at the core of his biographical data. Information about the identity of visitors and the frequency of their visits does not divulge the purposes of the otherwise observable associations, the nature of the relationship between the inmate and the visitor, in general; or any information with respect to the nature of their interaction or the substance of their communication during the course of such visits.

[151] Mr. Locknick testified to a subjective expectation of privacy in relation to information about his visitors during his incarceration. Establishing a subjective expectation of privacy requires the applicant to satisfy a relatively low threshold. Mr. Locknick has done so. The question is whether the subjectively held expectation is a reasonable one.

[152] In my view, the primary determining factor as to whether Mr. Locknick’s subjective expectation is reasonable, in all of the circumstances, is found in the informational secrecy and confidentiality mandated by s. 10(1) of the Act. At first instance, the scope of informational secrecy mandated by that section is all encompassing – it applies to “all matters” that come to the knowledge of a person employed in the administration of the Act.

[153] The identities of an inmate’s visitors, and the frequency and dates of the visits by identified visitors is information that falls within the broad category of “all matters.” If a person employed in the administration of the Act gains knowledge of such information in the course of employment, he or she must preserve its’ secrecy and is prohibited from disclosing it, except in accordance with the provisions of the Act and related regulations. In that context, an inmate’s subjectively held expectation of privacy in such information is objectively reasonable.

[154] However, I also found that Mr. Locknick’s reasonable expectation of informational privacy, which flows from s. 10(1) of the Act, was relatively diminished in all of the circumstances, for three reasons.

[155] First, in certain circumstances that are addressed further below, the Act and related regulations permit disclosure of an inmate’s “personal information”, in the discretion of a person designated to disclose such information and without the need for prior judicial authorization, for a number of specified purposes, including law enforcement and the administration of justice.

[156] Second, in the correctional facilities in which Mr. Locknick was incarcerated, inmates met with visitors in a semi-public area of the facility, where the fact of the visit could be observed by other visitors or inmates who were in the “visitor room” at the same time.

[157] Finally, the methodology by which visits with Mr. Locknick were facilitated, necessarily resulted in a state-created record about the fact of the visit and the identities of the persons involved because his visitors were required to “sign in with” and “identify themselves to” state actors (employees of a correctional institution) and to provide information to state actors about the identity of the inmate they sought to visit.

[158] As stated above, while the secrecy mandated by s. 10(1) of the Act applies, at first instance, to the knowledge of “all matters” a person employed in the administration of the Act gains through his or her employment, including the information that was provided to P.C. Hamlin by a representative from the Windsor jail, it is subject to exceptions.

[159] Pursuant to s. 10(2) of the Act a person employed by the Ministry, in the administration of the Act who is designated by the deputy minister or by his or her delegate, may disclose personal information about an individual in accordance with the regulations made pursuant to the Act, provided the purpose of the disclosure is included in the enumerated list set out in s. 10(3) of the Act (which includes, among others, “law enforcement” and the “administration of justice”).

[160] The regulations permit an individual designated under s. 10(2) of the Act to disclose information to a police force in Canada, for one or more of the purposes set out in s. 10(3) of the Act where, among other things, the individual is under investigation for, or charged with, an offence under the Code or other federal or provincial Act and if the circumstances are such that disclosure is required for, among other things, the administration of justice or the enforcement or compliance with any federal or provincial act, regulation or government program: see Reg. 778 made pursuant to Ministry of Correctional Services Act, s. 63(1), (2).

[161] In deciding whether to disclose personal information, the person who is authorized to disclose the information shall consider: the availability of resources and information; what is reasonable in the circumstances of the case; what is consistent with the law and the public interest; and what is necessary to ensure that the resolution of criminal proceedings is not delayed: see Reg. 778, s. 64.

[162] I accept Mr. Locknick’s submission that information related to the identities of the persons who visited him in correctional institutions and the dates of such visits, constitute “personal information” and may only be disclosed in accordance with s. 10(2) of the Act. I reject the Crown’s position to the contrary.

[163] “Personal information” is not defined in the Act or its regulations. The Crown observes that “personal information” is defined in s. 2(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c F.31 (FIPPA) as “recorded information about an identifiable individual”. That section then enumerates specific “types of information” that are included in that broad definition, as follows:

“[P]ersonal Information” means recorded information about an identifiable individual, including,

(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, telephone number, fingerprints or blood type of the individual,

(e) the personal opinions or views of the individual except where they relate to another individual,

(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g) the views or opinions of another individual about the individual, and

(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

[164] The Crown submits the information about a prisoner’s visitors does not fall within any of “types of information” specified in s. 2(1) of the FIPPA and therefore, it is not personal information. As a result, that type of information is not subject to the secrecy imposed by s. 10(1) of the Act. I disagree. The types of information that constitute “personal information”, as enumerated in s. 2(1) of the FIPPA are non-exhaustive. In my view, a record of the specific identities of persons visiting an inmate who is identified by name, together with the specific dates that those persons visited the inmate, constitutes “recorded information about an identifiable individual.” Accordingly, I find it is “personal information” and may only be disclosed in accordance with s. 10(2) of the Act and related regulations.

[165] There is an additional difficulty with the Crown’s submission that recorded information relating to an inmate’s visitors does not constitute “personal information”. In particular, the exception set out in s. 10(2) to the Act to the secrecy over “all matters” prescribed by s. 10(1) of the Act (and the corresponding prohibition against disclosure) only applies to “personal information”. The Act and regulations do not provide for circumstances in which information to which s. 10(1) of the Act otherwise applies, that does not constitute “personal information”, may be disclosed – other than the enumerated circumstances in s. 10(1)(a) – (d) (none of which are operable in this instance). Therefore, if the “visitor information” is not “personal information”, it cannot be disclosed through the exception set out in s. 10(2) of the Act and it remains subject to secrecy, pursuant to s. 10(1) of the Act. The Crown has not established a method by which it could otherwise be disclosed, in those circumstances.

[166] However, since I have found the impugned information constitutes personal information, it is potentially subject to disclosure in accordance with s. 10(2) of the Act. I also find that pursuant to the provisions of the Act and s. 63 of Regulation 778, the information requested by P.C. Hamlin with respect to Mr. Locknick’s visitors was of a kind that was capable of being disclosed to him, when the request was made in February 2013. At that time, Mr. Locknick was under investigation for an offence under the Code (conspiracy) and under the CDSA (trafficking in a controlled substance); the circumstances were such that the disclosure was required for the enforcement of the Code and the CDSA; the disclosure was to be made to a police force in Canada, and the purpose of the disclosure, “law enforcement”, falls within the permissible purposes set out in s. 10(3) of the Act.

[167] Nonetheless, s. 10(2) of the Act mandates that disclosure of personal information must be made by a person designated to do so. There is no evidence that the “representative from the Windsor jail” who provided P.C. Hamlin with information about Mr. Locknick’s visitors was designated to make that disclosure. Therefore s. 10(2) of the Act cannot be relied upon as authorization for the non-consensual disclosure of the “visitor information”.

[168] As a result, given Mr. Locknick’s reasonable expectation of privacy in the information concerning his visitors while incarcerated at the Windsor jail, P.C. Hamlin’s request for, and receipt of, that information amounted to a “warrantless search”. As a result, it was presumptively unreasonable and the onus is on the Crown to prove otherwise. Since there is no evidence that the person who disclosed the information was designated to do so, the Crown has failed to establish, on the balance of probabilities, that the visitor information was disclosed to P.C. Hamlin in a manner authorized by law and, therefore, the search was unreasonable and a violation of Mr. Locknick’s rights pursuant to s. 8 of the Charter.

[169] In the result, references to the product of the unconstitutional search, specifically para. 57 and the last sentences of paras. 67, 68 and 78 must be excised from the ITO.

3. Paragraph 66 - Incomplete

[170] In addition, para. 66 must be excised from the ITO. The paragraph is incomplete. It references a conversation between P.C. Hamlin and Constable John McMahon on April 8, 2013. The substance of the conversation is not set out in the ITO, although P.C. Hamlin asserts that it is consistent with “source information that LOCKNICK makes collect calls to DOUCET who will make a call through a three-way calling feature”. In the absence of evidence of the subject conversation, placing that conclusion in context, the paragraph must be excised.

4. Information Related to the Seizure at 715 Josephine Avenue

[171] The information with respect to the drug seizure at 715 Josephine Avenue in February of 2013 does not warrant excision from the ITO for the following reasons. In March 2013, Informant #2 provided information to Constable Nurmi, in which Mr. Locknick’s name was raised in the context of a seizure of three kilograms of cocaine – two of which were said to be his – and information that the seizure cost Mr. Locknick $200,000. Whether a seizure of the kind described by Informant #2 factually occurred, at all, was relevant to the determination of the reliability of Informant #2’s information. If no such seizure occurred, the reliability of information provided by Informant #2 could be subverted to some extent.

[172] While P.C. Hamlin provided information that a specific seizure of cocaine, potentially consistent with the volume described by Informant #2, did in fact take place relatively contemporaneous to Informant #2’s disclosure, he does not suggest that the police uncovered independent information or evidence directly linking Mr. Locknick with the seizure at Josephine Avenue.

[173] In the context of the ITO, as a whole, I am satisfied that the issuing judge would not have been misled or drawn inferences that were not available to him, by the inclusion of the Josephine Avenue seizure information.

5. P.C. Hamlin’s Stated Subjective Beliefs that Mr. Locknick, Ms. Doucet and Mr. Stiller were Involved in Criminality

[174] I do not find that the first sentences of any of paras. 67, 75 or 78 ought to be excised from the ITO. In each instance, P.C. Hamlin expressly articulates his subjective belief that Mr. Stiller, Mr. Locknick and Ms. Doucet are involved in trafficking and/or the illegal distribution of cocaine.

[175] The issuing judge’s task was to determine whether, based on the content of the ITO as a whole, there were reasonable grounds to suspect that the identified offences had or would be committed and that information that would assist in the investigation could be obtained through the proposed investigatory techniques. To the extent there were reasonable grounds to suspect the asserted conspiracy, information evidencing telecommunication traffic between its asserted members could assist in the investigation of the suspected offence.

[176] I do not find that any of P.C. Hamlin’s expressed subjective beliefs held the potential to mislead the issuing judge or distract him from his duty to determine if the requisite grounds for the warrants and orders sought existed, based on the totality of the content of the ITO. In doing so, I remain mindful that the issuing judge made his decision based on the contents of the ITO, as a whole, and he approached his assessment of the ITO in a practical, common sense and non-technical manner.

(v) The Review of DNR 1

[177] When viewed contextually, I am satisfied that the record before the issuing judge as excised, contained sufficient reliable evidence that might reasonably be believed, on the basis of which the issuing judge could have concluded that the statutory conditions required for DNR 1 to issue, had been met.

[178] As set out previously, for DNR 1 to issue, the issuing judge had to be satisfied that “reasonable grounds to suspect” that an offence under the Code or any other act of Parliament has or would be committed and that information that would assist in the investigation of the offence(s) could be obtained through the use of the investigatory techniques for which authorization was sought (a number recorder, a production order for telephone records and a tracking device).

[179] The standard of reasonable suspicion addresses the possibility of uncovering criminality, not a probability of doing so. The “reasonable grounds to suspect” standard is objective in nature and has been adopted by Parliament for searches in areas that involve lesser expectations of privacy. A suspicion, in the context of a search, is characterized as an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable suspicion” requires something more than a “mere suspicion” and something less than a belief based on reasonable and probable grounds. A sincerely held subjective belief, on its own, is not a reasonable suspicion: see R. v. Kang-Brown, 2008 SCC 18, at para. 75, [2008] 1 S.C.R. 456; Nero, at para. 73; and R. v. Mahmood, 2011 ONCA 693, at paras. 113–114, 107 O.R. (3d) 641.

[180] To be reasonable, a suspicion must be based on objectively discernable facts, which can then be subject to independent judicial scrutiny, in the context of the totality of the circumstances. The inquiry into the reasonableness of a stated suspicion must, therefore, consider the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. The inquiry is fact-based, flexible and grounded in common sense and practical, everyday experience. A reasonable suspicion cannot be made out, where the totality of the circumstances only discloses a generalized suspicion. However, a reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Since the relevant standard addresses the possibility of uncovering criminality and not the probability of doing so, factors that give rise to a reasonable suspicion may also support completely innocent explanations. Both favourable and unfavourable factors, including exculpatory, neutral or equivocal information, must be considered and weighed when assessing the constellation of factors said to give rise to a reasonable suspicion. Police are not duty-bound to undertake further investigation in order to seek out exculpatory factors or to rule out possible innocent explanations before arriving at a reasonable suspicion. While the objective facts must be indicative of the possibility of criminal behaviour, there is no requirement that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act: see R. v. Chehil, 2013 SCC 49, at paras. 26–36, [2013] 3 S.C.R. 220.

[181] To evidence a “reasonable suspicion” the ITO need not prove that a named individual has committed a specified offence. Instead the ITO must establish a reasonably grounded belief either that an offence has (or will) be committed or that an offence is reasonably suspected of having been (or being) committed, together with the investigatory requirement set out in the authorizing section of the Code: see Nero, at para. 82.

[182] A substantial component of the “grounds to suspect” articulated by P.C. Hamlin, in the ITO, consists of information gained from confidential informants. The reliability of such hearsay information is to be assessed with reference to “the totality of the circumstances surrounding the information”, in order to determine whether there exists credible circumstantial guarantees of trustworthiness of the informer’s disclosure. There is no formalistic test as to what the inquiry entails, rather, the court must look at a variety of factors including:

a) The degree of detail of the tip;

b) The source of the informer’s knowledge;

c) Indicia of the informer’s reliability, such as past performance or confirmation from other investigatory sources.

[183] In assessing the reliability of an informer’s information, consideration must be given to whether the information from the informer is compelling (in other words, is there sufficient detail to preclude the possibility that it was based on mere rumor, gossip or coincidence), credible and/or corroborated by other aspects of the police investigation. These are not discrete isolated inquiries, however, and a weakness in one area may be offset by strengths in another: see R. v. Debot [1989] 2 S.C.R. 1140, at p. 1168, 1989 CanLII 13 (S.C.C.).

[184] Independent confirmation of certain details of the informer’s account can be a very effective method of establishing him or her as a reliable source of information. Confirmation of only neutral and readily discernable facts that would likely have been known to anyone familiar with the suspect will, generally, not establish a reasonable basis for believing that the suspect is engaged in criminal conduct. The totality of the circumstances fall to be assessed on a case by case basis.

[185] In applying the foregoing principles, I turn first to the information provided by confidential Informant #1. Some of the information provided by Informant #1 (and Informant #2) has been redacted in the ITO produced on this application. The nature of that information is unknown. The Crown is only relying on the uneducated portions of the ITO to support the warrant’s issue. This application must be determined only on the basis of the un-redacted content of the ITO.

[186] In my view, the issuing judge was capable of concluding that information originally provided by Informant #1 was compelling both because of its level of detail and because it was sourced to one or more persons directly involved in the investigation to which it relates.

[187] The informer provided relatively specific information with respect to: the atypical method by which Mr. Locknick was said to arrange for the sale and distribution of cocaine, while incarcerated, including the use of three-way calling from a jail phone to his girlfriend; the identity of his girlfriend “Felicia” as a point of contact for the three-way calling; and the identification of Mr. Stiller as an individual carrying out the sale and distribution of cocaine, at Mr. Locknick’s direction. The informant provided specific information about the make, model and licence plate number of the vehicle Mr. Stiller was said to operate (which was not registered to Mr. Stiller) and the number for the phone Mr. Stiller utilized in furtherance of the sale and distribution of cocaine. At the time of the original tip, the informant had arranged to meet with Mr. Stiller to purchase cocaine, however the meeting was put off.

[188] Informant #1 provided information that each of Mr. Stiller, Mr. Locknick and Ms. Doucet were jointly involved in conduct contrary to the Code and the CDSA and information about their specific roles in that conduct. The issue is whether, in the totality of the circumstances, there were sufficient circumstantial guarantees of trustworthiness, such that Informant #1’s information in that regard could be relied on to form a reasonable suspicion that those persons were engaged in the specified criminal activity. In that regard, I observe the following.

[189] Informant #1 gained his or her information, including the method by which Mr. Locknick was said to arrange for the trafficking of cocaine while in jail, as a result of direct contact with a person or persons involved in the investigation.

[190] Informant #1 presented with a proven track record of providing reliable information in past drug investigations, including information which led to the execution of one or more search warrants, where persons were charged, and drugs named in the warrant were seized, as well as, information pertaining to other criminal activity that was verified through other investigative means. Overall, his or her reliability had been positively tested through past performance. Informant #1 had no convictions for crimes of dishonesty.

[191] P.C. Hamlin confirmed that aspects of Informant #1’s information were consistent with Windsor Police (Versadex) database information, which recorded a known association between Mr. Locknick and Mr. Stiller and an association between Mr. Locknick and Felicia Doucet, who was listed as his girlfriend. Versadex and CPIC database queries revealed that Mr. Locknick had five past drug related contacts with police and a conviction for possession for the purpose of trafficking. He was facing outstanding charges, which included a CDSA offence. Mr. Stiller had two past drug related contacts with police. He was facing outstanding charges including possession for the purpose of trafficking. Ms. Doucet had one past drug related contact with police. She was facing outstanding charges, including a CDSA offence.

[192] As the investigation proceeded, Informant #1 provided further information with respect to the specifics of cocaine purchases he or she made from Mr. Stiller. In addition, police surveillance yielded observations consistent with Mr. Stiller engaging in conduct consistent with the trafficking of a controlled substance, while using the specific vehicle identified by Informant #1.

[193] Mr. Stiller was observed to attend the Windsor Jail on one occasion in January 2013.

[194] In March 2013, Informant #2 provided information about the methodology by which Mr. Locknick was said to arrange for the trafficking of drugs from jail. That information was obtained as a direct result of contact with one or more persons involved in the investigation.

[195] Informant #2 indicated that Mr. Locknick was trying to “run his drug business” by using three-way calls from jail, and specifically “three-ways” to his home number. A specific telephone number was provided. When police conducted a “subscriber check” with respect to that number, it was not registered in the name of Mr. Locknick. Instead, it was registered in the name of “Douceg F” of 961 Edward Avenue, Windsor, which had previously been confirmed by police to be Ms. Doucet’s residential address.

[196] Informant #2 also provided information that Mr. Locknick’s “partner” was Brad Brown. A Versadex query by P.C. Hamlin revealed that Mr. Brown, who had multiple convictions for possession of a controlled substance for the purpose of trafficking, was listed as an associate of Mr. Locknick and as a friend of Mr. Stiller.

[197] Informant #2 had a past history of providing information to police that led to active criminal investigations and of providing information pertaining to other criminal activity that was verified by other investigative means. However, Informant #2 presented with convictions for specified, but redacted, offences, which P.C. Hamlin identifies as “negative considerations for the reliability of Informant #2”. Those convictions could reasonably be viewed as detracting from the overall reliability of Informant #2’s information.

[198] In my view, it was reasonably open to the issuing judge to find that Informant #2’s information about the method used to implement the alleged drug trafficking scheme and Mr. Locknick’s role in that scheme, lent some confirmatory support to the information provided by Informant #1. Both informants sourced their information from one or more persons directly involved in the investigation and they both described a very specific method by which Mr. Locknick was said to arrange for the sale and distribution of drugs through the use of three-way calls which he initiated from jail.

[199] Notably, Informant #1 provided “name-specific” information about one of the persons that Mr. Locknick allegedly contacted in order to initiate three-way calls for the purpose of arranging for the distribution of cocaine, namely, his girlfriend “Felicia”. Informant #2 provided a specific phone number that Mr. Locknick was alleged to call, from jail, in order to initiate such three-way calls to “run his drug business”. The “number specific” information provided by Informant #2, with respect to the phone number Mr. Locknick allegedly dialed from prison to initiate three-way telephone calls was consistent with the “name-specific” information provided by Informant #1, in that regard.

[200] The link between Mr. Locknick and the specific phone number provided by Informant #2 was not a matter of general public record or knowledge. As a matter of public record, the phone number was associated with “Douceg F” of 961 Edward Avenue. The landline did not exist prior to Mr. Locknick’s incarceration in April, 2012.

[201] The applicant correctly observes that police surveillance did not result in observations of Ms. Doucet engaged in activity consistent with drug trafficking. However, Informant #1 did not provide information that she was engaged in direct trafficking activities, such as the sale and/or delivery of controlled substances. That was not her alleged role in the trafficking scheme. She was identified as one of the individuals that facilitated Mr. Locknick’s contact with other people including Mr. Stiller, in order to arrange for the sale and distribution of cocaine.

[202] Informant #1’s identification of Mr. Stiller as an individual engaged in the active trafficking of cocaine was an essential element of the overall trafficking scheme that the informant described, and an important element of his or her narrative. That aspect of the tip could reasonably be viewed as having some confirmatory support through the police surveillance observations of Mr. Stiller. It was open to the issuing judge to rely on that potential for confirmatory support in order to more favourably view the reliability of all of the information provided by Informant #1, including the scope of the identified alleged criminal conduct, and the persons involved in same.

[203] Ultimately, as a result of: the degree of unique detail in the information provided by Informant #1; the direct sourcing of that information; the past reliability of information from Informant #1; the lack of any crimes of dishonesty committed by Informant #1; the confirmation of known pre-existing associations between Mr. Stiller and Mr. Locknick and Mr. Locknick and Felicia Doucet (including the nature of their relationship); independent observations of Mr. Stiller engaged in activity consistent with trafficking, while operating a vehicle matching the details provided by Informant #1; Informant #2’s information about the manner in which Mr. Locknick was said to “run his drug business” from jail (which was consistent with information from Informant #1 in that regard); the direct sourcing of Informant #2’s information; and the exacting consistency between Informant #1’s “name-specific” information about the person involved in the three-way calls (Mr. Locknick’s girlfriend Felicia) and the information provided by Informant #2 with respect to the number Mr. Locknick was said to call to initiate the three-way calls (that was associated with a landline registered to F Douceg at 961 Edward Avenue) – I find that:

(a) In the totality of the circumstances before him, it was open to the issuing judge to conclude that there were sufficient credible circumstantial guarantees of trustworthiness of Informant #1’s disclosure such that it might reasonably and safely be relied upon when determining whether the grounds to issue DNR 1 existed; and

(b) Therefore, objectively, it was open to the issuing judge to conclude that the information in the ITO was sufficient to found a reasonable suspicion that Mr. Locknick, Ms. Doucet and Mr. Stiller were engaged in a conspiracy to traffic cocaine and that Mr. Locknick was directing the trafficking efforts from the Windsor jail utilizing three-way phone calls initiated by calls he placed to a specifically identified phone number subscribed to by Ms. Doucet.

[204] While Mr. Locknick submits that the police investigation did not yield direct confirmation of the Informants’ information that he and Ms. Doucet were engaged in criminal conduct, that is not the standard by which the application for DNR 1 was required to be determined. The content of the ITO did not need to establish that a named individual committed an offence. Rather, the content of the ITO was required to establish a reasonably grounded suspicion either that an offence has been committed or that an offence would be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder (s. 492.2(1)) and a production order (s. 492.2(2)): see Nero, at para. 82. In my view, it was open to the issuing judge to conclude that P.C. Hamlin’s stated suspicion that Mr. Locknick, Mr. Stiller and Ms. Doucet had or would commit crimes including trafficking in a controlled substance and conspiracy was reasonable and in that sense, the results of the investigating techniques for which authorization was sought could evidence the extent of communications between them and would thereby assist in the investigation of the listed offences.

[205] In reaching that conclusion, I remain mindful that with the excision of information related to Mr. Locknick’s jailhouse visitor log, the ITO does not contain any direct evidence of any “in person contact” between any combination of Mr. Locknick, Ms. Doucet or Mr. Stiller. There is evidence that Mr. Stiller attended the Windsor jail in January 2013 but no evidence about who he interacted with, while there. The lack of observed “in-person contact” between Mr. Locknick, Ms. Doucet and Mr. Stiller, is not inconsistent with the mode of criminality described by the informants, which involved the participants in the conspiracy communicating via telephone. In considering the content of the ITO as a whole, the lack of observed “in-person contact” between Ms. Doucet, Mr. Stiller and Mr. Locknick, in any combination, does not displace the reasonableness of the grounds to suspect that they were or would be involved in the commission of the offences identified in the application for the warrant.

[206] The ITO also affords a basis for concluding that information that would assist in the investigation of the specified offences could be obtained through the use of a dialed number recorder with respect to the phone number associated with 961 Edward Avenue and through the production of associated historical telephone records.

[207] The ITO contained reliable evidence that might reasonably be believed that was sufficient to anchor a reasonable suspicion that “three-way telephone calls” from Mr. Locknick to Ms. Doucet’s landline and involving others (including Mr. Stiller) were the mode by which the offences set out in the ITO were, in part, carried out.

[208] The warrant sought production of historical records disclosing the fact, not the substance, of communications – specifically what numbers dialed Ms. Doucet’s landline, and what numbers were dialed from that landline, the date and time of the calls, and the length of calls. The number recorder for which authorization was sought, would yield “real time” information about the telecommunication traffic “to and from” the Doucet landline. Police also requested that the service provider activate the call forwarding feature to that number to assist “the investigation” in establishing a third number in the event of a three-way call feature being utilized.

[209] I find that it was open to the issuing judge to conclude that such information would be of assistance in investigating the offences specified in the ITO, particularly in determining the extent of telephone communication between Mr. Locknick, Mr. Stiller and Ms. Doucet with one another and, potentially, to assist in identifying others who may be involved in the reasonably suspected offences.

[210] For the foregoing reasons, I am satisfied that the ITO, as excised, and when read as a whole, was such that the issuing judge, acting reasonably, could have issued DNR 1. Therefore, I find that DNR 1 was valid and the resulting information acquired as a result of its execution was lawfully obtained. The applicant has failed to discharge his onus to prove otherwise.

(vi) Provisional s. 24(2) Analysis with Respect to DNR 1

[211] In the event I have erred in concluding that DNR 1 was validly issued, I turn to a consideration of whether the evidence obtained as a result of its execution ought to be excluded under s. 24(2) of the Charter. For the purpose of this analysis, I will assume that the content of the ITO could not establish the statutory pre-requisites set out in ss. 492.2(1) and (2) of the Code. In that event, DNR 1 could not have issued. The evidence gathered as a result of its purported execution, particularly from the number recorder on the landline at 961 Edward Avenue, would have been obtained as the result of a warrantless search, thereby infringing Mr. Locknick’s rights pursuant to s. 8 of the Charter.

[212] As a result, Mr. Locknick seeks a ruling pursuant to s. 24(2) of the Charter excluding from trial all evidence derived from the Charter violations. The onus is on the applicant to establish, on a balance of probabilities, that the admission of the evidence he seeks to exclude would bring the administration of justice into disrepute.

[213] Section 24(2) focuses on the overall repute of the justice system, which the court must promote and protect in order to maintain the integrity of, and public confidence in, that system. In determining an application brought pursuant to s. 24(2), the court must objectively inquire whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the impugned evidence would bring the administration of justice into disrepute. The focus of the inquiry is not aimed at punishing the police or compensating the accused.

[214] An application for the exclusion of evidence under s. 24(2) requires a balancing of the public interest in the protection of Charter rights and the public interest in the adjudication of criminal allegations on their merits, having regard to:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

3. society’s interest in the adjudication of the case on its merits;

(See R. v. Grant, 2009 SCC 32, at para. 71, [2009] 2 S.C.R. 353.)

[215] I will address each of the requisite areas of inquiry below.

1. The Seriousness of the Charter-Infringing State Conduct

[216] This stage of the analysis requires the court to consider whether the admission of the evidence obtained by Charter-infringing conduct would send the message to the public that courts condone deviations from the rule of law, by failing to dissociate themselves from the fruits of that unlawful conduct: see Grant, para. 72. The court must consider the seriousness of the violation viewed in terms of the gravity of the offending conduct by state authorities, who are required to uphold the rights guaranteed by the Charter.

[217] There is a spectrum of Charter-infringing conduct that ranges from the “minor, trivial or technical” to wilful or reckless disregard of Charter rights. The greater the seriousness of the Charter breach, the greater the risk that evidence obtained as a result of that breach, if admitted, would have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute.

[218] In this instance, the Crown asserts that to the extent there was a violation of Mr. Locknick’s s. 8 Charter rights in relation to DNR 1, it existed despite good faith on the part of the police who did not engage in any deliberate Charter-infringing conduct. I am mindful that good faith does not just equate to the absence of deliberate misconduct. Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.

[219] After considering the totality of the circumstances, I am satisfied that if there was a s. 8 violation with respect to DNR 1, it was not serious. The police sought warrant authority to acquire the information that they eventually obtained through the execution of the warrant. I am satisfied that P.C. Hamlin acted entirely in good faith in his attempts to obtain that information lawfully, by obtaining prior judicial authorization.

[220] In arriving at that conclusion, I remain mindful that information with respect to the “non-association order” was excised from the ITO. Similarly, information with respect to Mr. Locknick’s Windsor jail visitor log was excised because the manner in which it was obtained violated Mr. Locknick’s statutorily derived reasonable expectation of informational privacy. Nonetheless, I conclude that those findings do not operate to erode the general good faith with which P.C. Hamlin acted in attempting to obtain prior judicial authorization to obtain the information that resulted from the execution of DNR 1.

[221] The applicant submits that in the ITO, P.C. Hamlin placed significant emphasis on the assertion that Mr. Locknick and Ms. Doucet continued to communicate with each other despite a non-association order prohibiting them from doing so. As a result, P.C. Hamlin effectively suggested to the issuing judge that they were engaged in nefarious conduct with respect to the breach and he invited the issuing judge to draw a negative inference against them. The applicant suggests that as a result of the strong emphasis placed on the “breach of the non-association order” allegation that he made, P.C. Hamlin ought to have taken additional steps to verify the existence of the non-association order before he referred to it in the ITO. The applicant submits that P.C. Hamlin could easily have obtained a copy of Ms. Doucet’s recognizance before swearing the ITO, which would have positioned him to independently verify whether that condition remained in effect. He did not do so. As a result, his reliance on the “existence” of that condition at the time he swore the ITO cannot be said to have resulted from good faith efforts. I disagree.

[222] The content of the ITO expressly and plainly reveals that P.C. Hamlin’s information with respect to the non-association order attached to Ms. Doucet’s bail conditions came from a CPIC query. P.C. Hamlin obtained several pieces of information about Mr. Locknick, Mr. Stiller, Ms. Doucet and others from database queries including the Windsor police Versadex database and the CPIC database. He included that information in the ITO and properly sourced it to the respective databases from which it originated. In my view, absent a reasonable basis for believing that specific information he obtained from database inquiries, including the CPIC database, was inaccurate, misleading or incomplete, P.C. Hamlin was not under a duty to independently verify and corroborate each individual piece of information derived from those sources, before it could be said that he was acting in good faith by relying on that information to support the beliefs deposed to in the ITO. There is no evidence that P.C. Hamlin had a reasonable basis for believing or even suspecting that the non-association condition revealed through his CPIC check of Ms. Doucet was no longer in effect at the time he swore the ITO. He clearly sourced that information to the CPIC database in the ITO. I find there is no basis to conclude that he deliberately misled the issuing judge on that point or that he embellished the information that he received with respect to the non-association order.

[223] The applicant submits that P.C. Hamlin’s lack of good faith is further evidenced by the manner in which he obtained information related to Mr. Locknick’s visitors at the Windsor jail. Specifically, the applicant suggests that P.C. Hamlin took an “investigative shortcut” by simply requesting the subject information from a jail representative. He submits that P.C. Hamlin should have submitted a formal written request to the superintendent of the jail, in order to ensure that the information was released by a person designated to do so, to the extent that it was released at all. I do not agree.

[224] The Ministry of Correctional Services Act and related regulations do not specify the manner in which a request for information must be made by a member of a police force seeking disclosure of information for law enforcement purposes, which is otherwise subject to confidentiality pursuant to s. 10(1) of the Act. There is no statutory or regulatory requirement that a formal written request be forwarded to the superintendent of a custodial institution as a condition precedent to disclosure under s. 10(2) of the Act and its related regulations.

[225] I accept the Crown’s submission that to the extent P.C. Hamlin erred in his approach, it was in failing to ensure that the person who disclosed the information was “designated to do so”. More fundamentally, however, the legislative onus remained on the Ministry of Correctional Services employee who disclosed the information not to do so, unless he or she was designated to do so, in accordance with the Act. In those circumstances, P.C. Hamlin’s failure to independently verify that the “representative” was designated to disclose the information does not equate to a lack of good faith.

[226] In the totality of the circumstances, I find it was reasonable for P.C. Hamlin to rely on the jail representative’s act of disclosure as an indication that the person who made it, was legally authorized and capable of doing so. I have found that in the absence of evidence establishing that the person who disclosed the visitor log information was designated to do so, in the context of this application, the Crown has failed to discharge its onus to demonstrate that the warrantless search by which the visitor log information was obtained was reasonable and the results must be excised from the ITO. However, that does not alter my view that P.C. Hamlin acted in good faith. The purpose for which the information was disclosed (a law enforcement purpose) constituted a valid exception to the prohibition against disclosure of “any matter”, as codified in s. 10(1) of the Act. Pursuant to the regulations, personal information about an inmate can be disclosed to a police force for a law enforcement purpose without the necessity of a warrant and seemingly, without the necessity of advising the inmate that such disclosure has been made. The disclosure was made to a police force, which is an entity statutorily authorized to receive it.

[227] As a result, while I have concluded that in the absence of evidence that the representative who disclosed the information was designated to do so, the disclosure of Mr. Locknick’s jail log constituted a violation of his s. 8 right, I am, nonetheless, of the view that it was not a serious one.

[228] In the result, I find the infringing state conduct to be of modest seriousness. In reaching that conclusion, I have specifically accounted for the unconstitutional manner in which the Windsor jail visitor information was obtained, which in all of the circumstances, I find resulted from a “technical” Charter breach.

2. The impact of the breach on the Charter-protected interests of the accused

[229] At this stage of the analysis, the court must assess the extent to which the breach undermines the Charter-protected interests of the applicant. The more serious the impact on those protected rights, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. Courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacts those interests.

[230] In a preliminary oral ruling on standing, I found that Mr. Locknick enjoyed a reasonable expectation of privacy in information sought to be collected from the number recorder used in association with the landline located at the residence at 961 Edward Avenue, which he shared with Ms. Doucet prior to his April 2012 arrest. I also found that his expectation was relatively diminished for a number of reasons. First, the requisite grounds for a number recorder warrant, specifically “reasonable grounds to suspect” as opposed to “reasonable grounds to believe”, speaks to Parliament’s recognition of a diminished expectation of privacy in the information expected to be obtained from such a device. Phone numbers called – phone numbers received – time of call – length of call. No indication if the call was answered – or by whom. No information about the specific identities of the parties to the telephone call. No information about the content of the communications, if any, during the call: see Mahmoud, at para. 107; and Nero, at para 89.

[231] Second, Mr. Locknick’s reliance on an intermediary to complete the three-way calls on his behalf diminished his expectation of privacy with respect to the information concerning the numbers dialed on his behalf and the duration of calls, to some extent. While his relationship with Ms. Doucet offered some expectation of confidentiality, it was not absolute. With respect to the information in the historical telephone records sought by the production order, he had no direct control over, or access to, the data generated from the use of the landline as it appeared in the subscriber records. Ms. Doucet was the subscriber, not him.

[232] Finally, his calls originated from a jailhouse payphone and as a result his calls were subject to interception without a warrant, in specified circumstances defined by the regulations made pursuant to the Ministry of Correctional Services Act. Further, he had no control over, or access to, records of numbers dialed from the jailhouse payphone.

[233] Therefore, if information obtained through the execution of DNR 1 resulted from a warrantless interference with Mr. Locknick’s reasonable expectation of informational privacy, I find that given the extent to which his expectation was diminished as a result of the foregoing factors, such conduct had a minimal impact on the applicant’s Charter-protected privacy rights and liberty from unreasonable and unlawful state intrusion thereon.

3. The adjudication of the case on its merits

[234] In considering this factor, the court must determine whether the truth seeking function of the trial is better served by the admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence, as well as, the impact of failing to admit the evidence.

[235] The reliability of the evidence is an important factor. Exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public, and may tend to bring the administration of justice into disrepute.

[236] The information obtained from the dialed number recorder warrant is highly reliable evidence of exactly what it purports to show – phone numbers called, phone numbers from which calls were received, time of calls, duration of calls. The evidence is important to the Crown’s case but on its own, it is not “critical”. It would, however, assist in the determination of the case, on its merits.

[237] Before leaving this area of inquiry, I observe that at para. 84 of Grant, the Court states:

...it is the long term repute of the justice system that is s. 24(2)’s focus... [T]he short term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

4. Balancing the factors

[238] The final step in the analysis is the balancing of all these factors. The balancing exercise is a qualitative one, not capable of mathematical precision in a particular case. The evidence on each line of inquiry must be weighed, in the balance, to determine whether having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: see R. v. Harrison, 2009 SCC 34, at para. 36, [2009] 2 S.C.R. 494.

[239] I have concluded that if there was a s. 8 infringement with respect DNR 1 it occurred in spite of good faith efforts by the investigating police force to obtain prior judicial authorization for the search. Although portions of the ITO relating to evidence that was obtained in an unconstitutional manner were excised, I find that the Charter-infringing conduct in the gathering of that evidence was of a technical nature. The impact of the Charter-infringing conduct on Mr. Locknick’s privacy rights was modest, based on his relatively diminished expectation of privacy in the type of information obtained from the execution of DNR 1. The evidence is reliable and its admission would favour the adjudication of the case on its merits, in the context of very serious criminal allegations.

[240] As a result, in weighing all of the factors and in all the circumstances, I conclude that the repute of the administration of justice would suffer significant harm if information derived from the execution of DNR 1 was excluded. The harm to the repute of the administration of justice that would result from excluding that evidence outweighs the harm that would result from admitting the evidence at trial. Accordingly, the application to exclude evidence resulting from DNR 1 is dismissed.

B. The Challenge to DNR 2 – Issued April 25, 2013

(i) Background

[241] In response to an application made by P.C. Hamlin on April 24, 2013 (supported by an ITO sworn by him on that date), Hoffman J. granted DNR 2 on April 25, 2013. Among other things, that warrant authorized the use of a number recorder with respect to a specified cellular phone number registered to Felicia Doucet of 961 Edward, Windsor, Ontario (provided by Rogers Communications).

[242] The first 64 paragraphs of the April 24, 2013 ITO are nearly identical to the content of the ITO sworn in support of DNR 1, including the information derived from Informants #1 and #2; the positive and negative considerations with respect to the reliability of those informants; the results of database queries; the details of surveillance of Mr. Stiller’s activities; the information derived from Mr. Locknick’s “visitor log”; and the inaccurate reference to the currency and breach of the non-association order between Mr. Locknick and Ms. Doucet.

[243] The ITO in support of DNR 2 also includes information about the results from the number recorder placed on the landline at 961 Edward. The number recorder confirmed that the landline was receiving calls from a “private number” determined, through a representative of the telecommunications company “Telus”, to be associated with a payphone located inside the B range at the Windsor jail. Investigators believed those calls were made by Mr. Locknick. On receipt, those calls were automatically redirected to a phone number associated with a mobile phone registered to Felicia Doucet of 961 Edward Avenue, and the three-way calling feature of the mobile phone was then engaged. The number recorder could not record the numbers dialed from the mobile phone because it was provided by a different carrier than the landline. Police sought a further number recorder warrant for Ms. Doucet’s mobile phone number to obtain that information.

[244] The ITO also contained information sourced to a representative of Bell Canada that in order to make a “collect call” from a Bell payphone, such as the payphones on B range, the call would have to be placed to a landline.

(ii) The Nature of the Excisions to the ITO in Support of DNR 2

[245] The excisions that were made to the ITO sworn in support of DNR 1 must be made with respect to the ITO sworn in support of DNR 2. As a result, the content of the ITO related to information obtained from “a representative from the Windsor jail” about Mr. Locknick’s visitors must be excised – specifically, the entirety of para. 58. The information with respect to the non-communication order between Mr. Locknick and Ms. Doucet must be excised, specifically the last sentence of para. 28 and the first sentence after the word “corroboration” in para. 58.

[246] Mr. Locknick also submits that P.C. Hamlin’s description of the information obtained from the landline DNR, as set out throughout the ITO (including para. 70) is inaccurate, misleading and ought to be excised. He submits that P.C. Hamlin’s description of the number recorder’s display of a “private number”, which is said to be associated with calls from the “B range payphone”, is inconsistent with a subsequent description made by the affiant in support of the wiretap application (P.C. Sieberer) who described the result as a “blank space”, in paras. 103(d) and 106 of his affidavit sworn July 16, 2013 (I will review the content of the affidavit more fully in disposing of the application as it relates to the Part IV authorization).

[247] In my view, it is not necessary to excise the results of the landline number recorder from the ITO, for that reason or any other. I will explain.

[248] First, there is no conflict between para. 103(d) of the Sieberer affidavit and para. 70 of the ITO. The former describes information obtained from the number recorder applied to Ms. Doucet’s mobile phone number and the latter describes information from the number recorder on the 961 Edward Avenue landline.

[249] Second, I do not find that the characterization of the appearance of a call originating from a “jail payphone” as either a “blank space” or “private number”, is a material distinction, in the totality of the circumstances. The factual significance of the subject information is that calls that originate from the payphone located on the B range of the Windsor jail are not displayed with a specific telephone number, in the information obtained from the respective number recorders. The minor discrepancy in the descriptions of the DNR recorded results for calls originating from “the B range payphone” does not warrant excising the information obtained through the landline number recorder from the ITO in support of DNR 2.

[250] I find that reasonably, the issuing judge could not have been misled about the existence of grounds to issue DNR 2 as a result of the asserted discrepancy.

(iii) The Review of DNR 2

[251] I am satisfied that the ITO in support of DNR 2 contained sufficiently reliable evidence, that might reasonably be believed, on the basis of which DNR 2 could have issued. I have already explained why the information set out in the ITO in support of DNR 1 was capable of being viewed as supporting “reasonable grounds to suspect” that the offences specified in the ITO had or would be committed. That information is reproduced in the ITO in support of DNR 2, together with the results of additional police investigation (including the results from the landline DNR) that establish that the landline at Ms. Doucet’s residence was receiving calls from a payphone located in “B range at the Windsor jail”, which were forwarded to Ms. Doucet’s mobile phone and three-way calls were made thereafter. Reasonably, the issuing judge was capable of considering this as confirmatory support of the information from both Informants about the method said to be used by Mr. Locknick, to allegedly communicate with others involved in trafficking cocaine, at his direction.

[252] Further, para. 71 of the ITO contains sufficient information to establish a reasonable belief that the number recorder sought for the Doucet mobile phone would afford information that could assist in the investigation of the offences set out in the ITO. There, P.C. Hamlin deposes to his belief that a number recorder on Ms. Doucet’s cell phone will provide information about the identities of those persons that Ms. Doucet is three-way calling on behalf of Mr. Locknick and that such information will be useful in determining communications between involved persons; assist in determining potential buyers, suppliers and partners; and in evidencing outgoing calls to Mr. Stiller’s mobile phone number, as made by Ms. Doucet.

[253] Based on the totality of the circumstances set out in the ITO, as excised, it was open to the issuing justice to conclude that there were reasonable grounds to suspect Mr. Locknick, Ms. Doucet and Mr. Stiller had or would engage in the criminality predicted by the informants and that information that would assist in the investigation (in particular that set out above) could be obtained through execution of the warrant, as requested.

[254] Therefore, I find that the issuing judge, acting reasonably, could have issued DNR 2 based on the content of the ITO, as excised and read as a whole. DNR 2 is therefore valid and the information obtained through its execution was lawfully obtained.

C. The Challenge to DNR 3 and DNR 4 – Issued June 6, 2013 and June 13, 2013, respectively

(i) Background

[255] On June 6, 2013, Hoffman J. issued DNR 3, which by its terms extended the operation of DNR 1 and DNR 2, otherwise due to expire on June 13, 2013 and June 23, 2013, respectively. The extension was granted from June 14, 2013 to August 13, 2013. Pursuant to s. 492.2(4) of the Code, the period of the warrant could not be more than 60 days after the date it was issued. The stated period for which DNR 3 was operable was 61 days. On June 12, 2013, Hoffman J. issued DNR 4, the terms of which corrected the error by restricting the order to a period from June 14, 2013 to August 12, 2013.

[256] P.C. Hamlin swore an ITO dated June 6, 2013 in support of his application for DNR 3 and a slightly modified version of that ITO on June 12, 2013 in support of his application for DNR 4.

[257] The ITO in support of DNR 4 is identical to the ITO in support of DNR 3 except for the inclusion of one additional paragraph (para. 82), in which P.C. Hamlin states, in part, that after DNR 3 was granted he determined that the requested period for the warrant was 61 days instead of 60 days.

[258] The ITOs in support of DNR 3 and DNR 4 contain a substantial amount of the information previously set out in the ITOs in support of DNR 1 and DNR 2, including: the information obtained from Informant #1 and Informant #2; the positive and negative considerations with respect to the reliability of that information; the results of various database queries including the inaccurate information that the non-association order between Mr. Locknick and Ms. Doucet was in effect at the time of the investigation; the results of surveillance of Mr. Stiller; information about Mr. Locknick’s jailhouse visitors obtained from a representative of the Windsor jail; and information obtained before April 24, 2013, from the number recorder on the Doucet landline, including its receipt of calls originating from a payphone located in B range at the Windsor jail.

[259] The ITOs in support of DNR 3 and DNR 4 also include:

(a) additional information provided by Informant #1, in May 2013, that he or she purchased cocaine from Mr. Stiller and that Mr. Locknick had been put in segregation at the Windsor jail for “getting caught with dope”;

(b) the result of further surveillance of Mr. Stiller, which was consistent with a hand to hand drug transaction and counter-surveillance techniques, on his part;

(c) the particulars of a Windsor Police Services investigation of an incident on May 27, 2013, at the Windsor jail, in which Mr. Locknick was allegedly observed on video surveillance leaving a quantity of crystal methamphetamine in a tea jug on B range. A subsequent search of his cell, by jail authorities, was said to have uncovered an additional quantity of that drug. P.C. Hamlin states that on June 3, 2013, he read a report authored by Windsor Police Service Constable Flemming, dated May 28, 2013, which detailed those incidents.

(d) The results of surveillance of Ms. Doucet conducted on June 6, 2013, which revealed innocuous activities;

(e) The results from the number recorder on Ms. Doucet’s mobile phone, which evidenced that numerous calls from a payphone on B range at the Windsor jail were placed to Ms. Doucet’s phone number and in the course of the resulting phone call, “three-way telephone” calls were frequently initiated from that mobile phone to other phone numbers, including a phone number associated with Mr. Stiller. Specifically, from the time the DNR 2 warrant was operable until June 4, 2013, there were “85” “three-way calls” originating from a B range payphone, routed to the Doucet mobile phone number (as forwarded from the Doucet landline) and then to the number for a mobile phone used by Mr. Stiller. The duration of the calls typically lasted between 10 seconds and five to six minutes. On some days, such three-way calls would take place four to six times within a four to six hour time period.

(ii) The Extent of Excisions to ITO in support of DNR 3

[260] For reasons which I have previously stated in the context of the review of DNR 1, when determining whether the issuing judge could have issued DNR 3, based on the evidence before him, references to the “non-association order” and to Mr. Locknick’s visitor log information must be excised from the ITO. Therefore, the last sentence of para. 27, the entirety of para. 57, the portion of the second sentence of para. 79 stating “while being bound by a court order to abstain with communicating with one another”, the last sentence of para. 82, the last sentence of para. 83 and the last sentence of para. 96, must be excised.

[261] The applicant also submits that further excisions are warranted because P.C. Hamlin failed to disclose material information related to the May 27, 2013 (crystal methamphetamine) incident at the Windsor jail in the ITOs he swore in support of DNR 3 and DNR 4. Some brief contextual background is warranted.

[262] Mr. Locknick was charged with an offence arising out of the May 27, 2013 incident, which resulted in a trial in the Superior Court of Justice in December 2015. P.C. Hamlin gave evidence at that trial. A copy of the transcript of P.C. Hamlin’s evidence from that proceeding was filed on this application.

[263] In his trial evidence, P.C. Hamlin indicates, among other things that: he was not the officer in charge of the investigation into the May 27, 2013 incident; he assisted the investigation by attending the Windsor jail on June 7, 2013 to obtain a sealed evidence bag containing the subject contraband, which he then turned over to the officer in charge (WPS P.C. Swynston); he applied for DNR 3 on June 6, 2013; Mr. Locknick was not charged with an offence arising out of the May 27, 2013 incident until July 25, 2013 owing, in part, to concerns that disclosure in relation to that incident could jeopardize P.C. Hamlin’s ongoing conspiracy and trafficking investigation and because it was anticipated that charges from both investigations would, ultimately, be combined; Mr. Locknick was sentenced in Windsor on a “third unrelated matter” on July 18, 2013; and the timing of the charge related to the May 27, 2013 incident was designed to ensure Mr. Locknick remained in the Windsor jail, as he was otherwise subject to being transferred to a different correctional facility to serve his sentence.

[264] After reviewing the transcript of his evidence in December, 2015 together with the ITO in support of DNR 3, I do not find that P.C. Hamlin engaged in material non-disclosure regarding the May 27, 2013 crystal-methamphetamine incident when he swore the ITO on June 6, 2013. He referred to the incident in some detail at paras. 75 and 81 of the ITO, and notably, at the time he swore it, he had not yet attended at the jail to take receipt of the evidence related to that incident.

[265] The applicant correctly observes that the ITO does not disclose any intention by Windsor Police Service officers to delay charging Mr. Locknick in relation to the May 27, 2013 incident. However, P.C. Hamlin’s trial evidence in December 2015 does not indicate the specific date that police decided to delay laying a charge with respect to that incident. Even if that decision had been made before P.C. Hamlin retrieved the sealed evidence package from the Windsor jail on June 7, 2013, I do not find that the failure to include that information in the ITO had the potential to mislead the issuing judge with respect to whether the requisite grounds existed to issue DNR 3. I will explain below.

[266] There is no suggestion that the information that was included in the ITO about the May 27, 2013 incident itself was false, incomplete or misleading. Further, that information had the potential to corroborate information provided by Informant #1 in May 2013 that Mr. Locknick “was caught with dope in the Windsor jail” and accordingly it was relevant to the content of the ITO.

[267] In my view, information about decisions regarding “when to charge” Mr. Locknick with an offence resulting from the May 27, 2013 incident was not material to the issue of whether there were reasonable grounds to suspect that Mr. Locknick, Mr. Stiller and Ms. Doucet had or would commit the offences specified in DNR 3 (conspiracy to traffic in a controlled substance, trafficking in a controlled substance, possession for the purpose of trafficking and possession of proceeds obtained by crime) and that the investigative techniques for which authorization was sought (including number recorders and production orders for telephone records) could result in information that would assist in the investigation of those offences.

[268] Had a decision been made on or before June 6, 2013 to delay charging Mr. Locknick for the May 27, 2013 incident (something which the evidence does not establish) and that information had been disclosed in the ITO, it remains that the issuing judge could have concluded that the prerequisites to issue DNR 3 were met through the content of the ITO, read as a whole, after excising any information relating to Mr. Locknick’s visitor log and the non-association order.

(iii) Review of DNR 3

[269] In the application for DNR 3, police sought to extend the time in which they could utilize the investigatory techniques authorized by DNR 1 and DNR 2. Neither the subjects of the investigation or the nature of their suspected criminality had changed since DNR 1 and DNR 2 were issued. The information relied on to support the issue of those warrants, respectively, was before the issuing judge again. In my view, the results of the investigation conducted after those warrants were issued further enhanced the grounds to issue DNR 3. I will explain.

[270] While police surveillance of Ms. Doucet did not reveal her to engage in anything but innocuous activity, such observations are not inconsistent with her role in the trafficking scheme, as believed by P.C. Hamlin and asserted by Informant #1. Further, the results of the execution of DNR 1 (including the landline number recorder and production orders) confirmed that the landline at Ms. Doucet’s residence received calls from a payphone on B range at the Windsor jail, the calls were forwarded to a cell phone number registered to Ms. Doucet and three-way calls would ensue. That evidence was consistent with the mode of communication facilitating the asserted trafficking conspiracy, as described by Informants #1 and #2.

[271] In addition, the information derived from the number recorder used in relation to Ms. Doucet’s mobile phone could reasonably be viewed as lending further confirmatory support to the confidential informant information about the three-way calls. The number recorders evidenced, among other things, frequent and relatively brief calls originating from a payphone on B range at the Windsor jail to the landline at Ms. Doucet’s residence, which were forwarded to Ms. Doucet’s cell phone number, at which point a three-way call was engaged with a cell phone number used by Mr. Stiller. Surveillance and informant information suggested Mr. Stiller was actively engaged in activities consistent with cocaine trafficking. Thus, the investigative results arising from the execution of DNR 1 and DNR 2 could reasonably be viewed as strengthening the reasonableness of P.C. Hamlin’s stated suspicion of the criminality he identifies in the ITO.

[272] Additionally, the information with respect to the May 27, 2013 “crystal methamphetamine incident” was capable of confirming, to some extent, information provided by Informant#1 to police in May 2013, and could be relied upon to further enhance the overall reliability of the information from that source.

[273] For the foregoing reasons, I am satisfied that the ITO, as excised, and read as a whole, was such that the issuing judge acting reasonably and judiciously could have issued DNR 3.

[274] Therefore, I find that DNR 3 was valid and the resulting information obtained through its execution was lawfully obtained.

(iv) Extent of Excisions to ITO in support of DNR 4

[275] The references to the inaccurate non-association order and the information obtained about Mr. Locknick’s visitors must be excised from the ITO in support of DNR 4 – specifically, the last sentence of para. 27, the entirety of para. 57, the portion of the second sentence of para. 79 stating “while being bound by a court order to abstain with communicating with one another”, the last sentence of para. 83, the last sentence of para. 84 and the last sentence of para. 97.

(v) Review of DNR 4

[276] My finding that DNR 3 could have issued based on the information contained in the ITO in support of that warrant, as excised, applies equally to the issue of DNR 4, based on the content of the ITO in support, as excised and read as a whole. As a result, I find the issuing judge, acting reasonably, could have issued DNR 4. Therefore, DNR 4 is valid and the information resulting from its execution was lawfully obtained.

D. The Authorization to Intercept Private Communications – Pursuant to [s. 185](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) and [186](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) – Granted July 18, 2013

(i) Background

[277] On July 18, 2013, Patterson J. authorized peace officers to intercept communications pursuant to ss. 185 and 186 of the Code, together with related assistance orders pursuant to s. 487.02 of the Code, in the investigation of offences of:

a) Trafficking in a controlled substance, contrary to s. 5(1) of the CDSA;

b) Possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the CDSA;

c) Possession of proceeds of crime, contrary to s. 354(1)(a) of the Code;

d) Any conspiracy to commit, attempt, or be an accessory after the fact to the commission of, or counselling in relation to, the above offences.

[278] The authorization permitted the interception of all private, oral communications, telecommunications and radio based telephone communications from principal known persons: Wayne Anthony Locknick; Michael Lucien Stiller; and Felicia Elise Doucet.

[279] The authorization also named 37 other “known persons” including the accused, Tanya Gatt and an alias believed to be the accused, Kyle McKnight. Mr. Garrity was not a named person, however, his communications are said to have been intercepted as a result of the execution of the authorization.

[280] Patterson J. also authorized number recorder warrants with respect to mobile phone numbers for devices said to be used by Mr. Stiller and Ms. Doucet, a production order with respect to telephone records, a tracking device warrant for the vehicle said to be driven by Mr. Stiller and the mobile telephones said to be utilized by Mr. Stiller and Ms. Doucet, a general warrant for covert entry and trespass pursuant to s. 487.01 of the Code, on specified terms, with respect to 961 Edward Avenue, and the vehicle said to be operated by Mr. Stiller and “any other place, stationary or mobile, that there are reasonable grounds to believe is being, or will be, resorted to, or used by Ms. Doucet, Mr. Stiller or Mr. Locknick” and an assistance order pursuant to s. 487.02. The authorization and related orders and warrants were valid for a period not exceeding 60 days from July 18, 2013.

(ii) The Affiant

[281] Police Constable Richard Sieberer swore an affidavit in support of the application for the authorization and related orders on July 16, 2013.

[282] P.C. Sieberer is a senior constable with the Windsor Police Service and has been employed in that capacity since January 2002. At the time he swore the affidavit, he was assigned to the Drugs and Guns Enforcement Unit and had served in that capacity since September 2011. His duties at the time, included the investigation of drugs and gun offences, the gathering of intelligence and the preparation of search warrants. At the time he swore the affidavit, he had previously been involved in over 300 drug investigations in his policing career and he had been the affiant in seven applications for CDSA search warrants, in relation to various controlled substances and six Criminal Code search warrants involving firearms. On June 18, 2013, he was assigned to assist in the “drug investigation” of Mr. Locknick, Mr. Stiller and Ms. Doucet and was designated as the affiant for all part VI affidavits and other “informations to obtain”, in relation to the investigation described as “Project Nessie”.

(iii) The Affiant’s Overview of the Investigation

[283] In his affidavit, P.C. Sieberer provides an overview of the investigation to-date and states his belief, based on the information set out in the affidavit, that Locknick, Doucet and Stiller were operating a drug-trafficking network in Windsor-Essex County, and that Locknick operated the network while incarcerated at the Windsor jail and continues to operate the network after being transferred to the Sarnia jail. He deposed to his belief that Doucet was the “go between” for Locknick and Stiller, using a three-way call forwarding feature on her mobile cellular phone and that once instructions and information were provided to Stiller, Stiller was the person running the day-to-day activities of the drug trafficking network and engaging in the drug transactions.

[284] In support of his stated belief, P.C. Sieberer deposes to the following investigative overview:

a) On April 17, 2012, Mr. Locknick and his girlfriend Felicia Doucet were charged with numerous guns and drug offences as a result of the execution of a CDSA search warrant at their residence. Ms. Doucet was released on a recognizance and Mr. Locknick was remanded to the Windsor county jail. P.C. Sieberer states that he understood that Mr. Locknick was “planning to plead guilty” to some of the April 17, 2012 charges and was currently awaiting sentencing, scheduled for July 16, 2013. It was expected that Mr. Locknick would be incarcerated at a provincial reformatory, thereafter;

b) In October 2012, Constable Paterson received information from a confidential informant (Informant #1) that Mr. Locknick was running his drug trafficking business from jail by calling Ms. Doucet from a payphone at the Windsor county jail. Ms. Doucet would then make three-way calls to Mr. Stiller on Mr. Locknick’s behalf. The informant believed that Mr. Stiller worked for Mr. Locknick and was selling cocaine on his behalf. The informant had purchased cocaine directly from Mr. Stiller.

c) On May 27, 2013, while incarcerated, Mr. Locknick was charged with trafficking and possession of a controlled substance (crystal methamphetamine) inside the jail. On June 5, 2013, Mr. Locknick was transferred from Windsor county jail to Sarnia county jail, where he remained incarcerated at the time the affidavit was sworn.

d) Based on information provided by confidential Informant #1, Windsor police began an investigative probe into Mr. Locknick, Mr. Stiller and Ms. Doucet. As part of the investigation, two production orders in relation to mobile phones utilized by Mr. Stiller were applied for and issued. A tracking device on Stiller’s vehicle was deployed and dialed number recorder warrants on Ms. Doucet’s landline and mobile phones were also applied for and issued.

e) Physical surveillance confirmed that Mr. Stiller operates a 2000 Chrysler 300M automobile. Physical surveillance resulted in police observations of Mr. Stiller engaging in drug transactions and to the identification of two possible “stash houses” (a term referring to a location that drug dealers use to store illegal substances). Mr. Stiller consistently employed counter-surveillance techniques while driving, making surveillance difficult.

f) Production orders for the period of January 1, 2013 to March 31, 2013 revealed that Ms. Doucet and Mr. Stiller had telephone contact a total of 428 times during that period. A breakdown of the contacts revealed that Mr. Stiller contacted Ms. Doucet six times and Ms. Doucet contacted Mr. Stiller 48 times by voice call. Mr. Stiller contacted Ms. Doucet 165 times and Ms. Doucet contacted Mr. Stiller 209 times by short message service (text messages) during that time. P.C. Sieberer deposed that other known drug dealers and possible buyers had also been identified with information obtained from the production order for the mobile phone said to be used by Mr. Stiller.

g) In compliance with a production order, a call detail records log was provided by the Ministry of Community, Safety and Correctional Services revealing 169 calls from the Windsor county jail to Ms. Doucet’s landline during the period from January 11, 2013 to May 31, 2013. A comparison of the timing of those outgoing calls to the results of the number recorder on Ms. Doucet’s mobile phone evidenced that they were synchronous. The calls to the Doucet landline that investigators believed originated from the Windsor jail resulted in a “blank space” being recorded in the area of the DNR log sheet where an incoming phone number is usually displayed.

h) The results of the DNR on the 961 Edward Avenue landline and Ms. Doucet’s mobile phone and the call detail records for the B range payphone confirmed that Ms. Doucet received numerous calls from the payphone located on B range at the Windsor county jail, which was where Mr. Locknick was being held in custody. Investigators believed the calls were made by Mr. Locknick. The number recorder results also confirmed that Mr. Locknick continued to call Ms. Doucet after being transferred to the Sarnia county jail. The length of the calls varied from under one minute to over 20 minutes. During those calls, numerous outgoing calls were made from Ms. Doucet’s mobile phone, using a three-way calling feature. During the period from April 26, 2013 to June 25, 2013, there were 459 three-way calls completed from the Doucet mobile phone. All of those calls originated from a payphone on B range at the Windsor jail, where Mr. Locknick was incarcerated. Eighty of the three-way calls were made to a mobile phone used by Mr. Stiller, after a call originating from the B range payphone was routed to Ms. Doucet’s mobile phone. On some days, the frequency of three-way calls to Mr. Stiller was four to six times within a four to six hour time period. P.C. Sieberer deposes that several other known drug dealers in the Windsor-Essex County area were also identified with information obtained from the number recorder associated with the Doucet mobile phone.

i) Based on the foregoing information, P.C. Sieberer believed that it was reasonable to conclude that phone calls originating from the Windsor county jail and the Sarnia jail to Ms. Doucet’s landline were being made by Mr. Locknick, even though the incoming number was displayed as a blank on the number recorder log sheet. His belief in that regard was based on: informant information; Mr. Locknick and Ms. Doucet’s known relationship; and corroboration obtained from the number recorder and a call detail records log provided by the Ministry of Community, Safety and Correctional Services pursuant to a production order. He acknowledges that the investigative team never observed Mr. Locknick making the impugned calls but he states there was reason to believe that he was doing so from jail. As a result, throughout the affidavit he refers to Mr. Locknick calling Ms. Doucet as a matter of fact.

j) The information received from the tracking device on Mr. Stiller’s vehicle and mobile phone resulted in two addresses identified as possible stash house locations. P.C. Sieberer states that data from the tracking device indicates that Mr. Stiller’s driving habits were consistent with a person conducting counter-surveillance techniques, which he then describes in detail. He states that several addresses have been identified as potential buyers and/or associates of Mr. Stiller and the tracking device on Mr. Stiller’s mobile phone assisted in locating and verifying his location, when surveillance was lost or initiated.

[285] P.C. Sieberer states that conventional investigative techniques have been employed in the investigation and have been successful in “linking” Mr. Locknick, Ms. Doucet and Mr. Stiller as a drug trafficking network. While the investigation was extensive, he believed it was now beyond the scope of conventional investigative techniques. He acknowledged that to date, the investigation had failed to provide sufficient information to gather reasonable and probable grounds to arrest the parties and successfully prosecute all of the criminally involved persons. As such, he sought an authorization to intercept private communications pursuant to ss. 185–186 of the Code. He deposed that based on the investigation to date, there were reasonable grounds to believe that intercepting the private communications of Mr. Locknick, Ms. Doucet and Mr. Stiller would assist in the investigation of illicit offences and that other methods of investigation were not likely to succeed.

[286] P.C. Sieberer states that since Mr. Locknick, Mr. Stiller and Ms. Doucet had limited personal contact with each other, the investigative team felt they must be communicating by telephone, which was verified by the results of the number recorder on the Doucet mobile phone and the production order with respect to Mr. Stiller’s phone. He believed that the only investigative procedure remaining that would provide information of “this drug trafficking network and identify persons responsible and their respective roles” was the interception of private communications of the named persons, Locknick, Stiller and Doucet.

(iv) The Identified Goals of the Investigation

[287] In the affidavit, P.C. Sieberer identifies the overall goals of the investigation as:

1. Gathering evidence that will assist in the prosecution of Wayne Locknick, Felicia Doucet and Michael Stiller for possession of cocaine for the purpose of trafficking, trafficking in cocaine, possession of proceeds of crime and any conspiracy related to those offences;

2. To identify Mr. Locknick’s cocaine supplier and other involved parties in the drug trafficking network and to gather evidence against them for prosecution;

3. To identify all individuals involved in the “criminal drug network and to disrupt and dismantle the criminal organization”.

(v) The Statutory Pre-Conditions to the Grant of an Authorization to Intercept Private Communications

[288] Section 186(1) of the Code prescribes two requirements for the granting of an authorization allowing the interception of private communications:

1. Probable Cause - It must be “in the best interests of the administration of justice” to grant the authorization. In order to meet this requirement, the authorizing judge must be satisfied, by sworn affidavit, that there are reasonable and probable grounds to believe:

a) A specified crime has been or is being committed; and

b) The interception of the private communications will afford evidence of the crime: see R. v. Mahal, 2012 ONCA 673, at para. 68, 113 O.R. (3d) 209; Nero, at para. 115.

2. Investigative Necessity – it must be shown that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed, or the urgency of the matter is such that it would be impractical to carry out the investigation of the offences using only other investigative procedures.

(vi) The Affidavit Evidence Directed to the “Probable Cause” Requirement

[289] In the affidavit P.C. Sieberer deposes, in detail, to all of the information developed from Informant #1, on an on-going basis over the course of the investigation (including several direct cocaine purchases from Mr. Stiller) and the information from Informant #2 which notably, he states was only relied on to corroborate information from Informant #1; the positive and negative considerations with respect to the reliability of each Informant; the manner in which pieces of information originally provided by Informant #1 were confirmed by other investigatory steps (including database searches, subscriber checks, the results of the execution of the number recorder warrants and telephone production orders and surveillance of Mr. Stiller) and details of confirmation of aspects of information originally provided by Informant#2.

[290] He sets out the details of: the physical surveillance and tracking device data with respect to Mr. Stiller, including his activities consistent with hand-to-hand drug transactions (on December 11, 2012, January 21, 2013, January 30, 2013, January 31, 2013 and May 31, 2013) and counter-surveillance techniques and his various attendances at, or in the area of, two possible stash houses; his observed interactions with others said to have prior convictions for CDSA related offences; the details of various database searches of Mr. Stiller, Ms. Doucet, Mr. Locknick and other individuals identified during the course of the investigation; the particulars of prior police occurrence reports related to Mr. Locknick and to Mr. Stiller, respectively – including one from 2010, when they were found together in a vehicle that was subsequently searched; the particulars of the May 27, 2013 crystal methamphetamine incident at the Windsor jail; and the results and analysis of information obtained from productions orders for the mobile phone used by Mr. Stiller, production orders for phone records of the Ministry of Community, Safety and Correctional Services for payphones located in the areas of the Windsor Jail and Sarnia Jail in which Mr. Locknick was incarcerated during the relevant times; and the number recorders for the 961 Edward Avenue landline and Ms. Doucet’s mobile phone.

[291] P.C. Sieberer also describes the content of a confidential informant debrief report authored by P.C. Hamlin in July 2013 indicating that he received information from Informant #1 in June and July 2013 that Mr. Locknick was transferred to a jail in Sarnia because he “was caught with crystal meth at the Windsor jail”. That information was independently confirmed by additional police investigation. Further, Informant #1 advised P.C. Hamlin that Mr. Stiller was “being driven around by Tanya Gatt”, who was said to operate a red car. P.C. Sieberer states that by way of confirmation, during physical surveillance on May 27, 2013, police observed Mr. Stiller and Ms. Gatt together at a local mall. Ms. Gatt was observed operating a red Ford Fusion vehicle. Finally, Informant #1 advised P.C. Hamlin that Mr. Stiller had a new mobile phone number, which the informant provided. On July 3, 2013, officers called that number while Mr. Stiller was under physical surveillance. Mr. Stiller was observed to answer his cellular phone when the call was placed. The phone number was determined to be registered to “Bob Dole” of “111 Fake Street”.

[292] P.C. Sieberer disclosed that surveillance of Ms. Doucet was conducted on June 5, 2013 and evidenced an innocuous attendance at a local aquatic facility and restaurant, together with contact with third parties who were believed to be unrelated to drug trafficking. P.C. Sieberer references the information about Mr. Locknick’s jailhouse visitors, which was obtained by P.C. Hamlin in February 2013 and provides details of further visitor information that P.C. Hamlin received on July 2, 2013, from “a representative from the Windsor county jail”.

[293] P.C. Sieberer discloses the results of the April 15, 2013 production order (authorized by DNR 1) with respect to Mr. Stiller’s mobile phone, which revealed, among other things, that between January 1, 2013 and March 31, 2013, 13,562 calls were received or made from that cellular phone number. There were 428 contacts between the Doucet mobile phone and the Stiller mobile phone during that time – 54 telephone calls and the balance as text messages. There were 1,197 contacts between the Stiller mobile phone number and a landline registered to Ms. Gatt. There were 448 contacts between the Stiller mobile phone and a phone number registered to “Oswald Cobblepot” of 949 Glidden Avenue, an address confirmed to be associated with the accused Kyle McKnight. The results of a subsequent production order made on June 12, 2013, for the records of the mobile phone utilized by Mr. Stiller, had not been received by police at the time P.C. Sieberer swore the affidavit.

[294] P.C. Sieberer sets out the relevant information leading to the number recorder authorizations for the Edward Avenue landline and Ms. Doucet’s mobile phone and the results of the execution of the number recorder warrants. He states that 2,687 sessions (a call between two parties) occurred between the time DNR 2 was granted on April 25, 2013 and the date his affidavit was sworn (July 16, 2013). He deposes that when Mr. Locknick calls Ms. Doucet’s landline from the county jail, the call is redirected to Ms. Doucet’s mobile phone. The calls range in duration from less than one minute to just over 20 minutes. During Mr. Locknick’s calls, several calls are made from Ms. Doucet’s mobile phone using the three-way calling feature with the duration of the second calls lasting between 20 seconds to more than five minutes. Between April 26, 2013 and June 25, 2013, 459 three-way calls were made from the Doucet mobile phone, after the call was initiated from a payphone accessible to Mr. Locknick in the area of the jail in which he was incarcerated. The calls “originating from Mr. Locknick” occurred between 7:00 a.m. and 7:00 p.m.

[295] P.C. Sieberer states that contact with several “high level drug dealers” was identified as a result of the number recorder on the Doucet mobile phone, including Michael Stiller, David Emberly, Kyle McKnight and Jeremy Markham. As of June 25, 2013, 104 calls between Ms. Doucet’s mobile phone and Mr. Stiller’s mobile phone were identified, with 92 of those sessions involving a three-way call.

[296] On June 15, 2013, a new number appeared on the number recorder registered to “Bob Dole” with an address of “111 Fake Street”. There were 20 calls between the Dole phone number and Ms. Doucet’s mobile phone between June 15, 2013 and June 25, 2013. On July 3, 2013, police confirmed that Mr. Stiller was using the phone associated with the “Dole” number.

[297] A timeline developed by police, which is based on the number recorder information and the results of production orders, shows that between April 26, 2013 and May 31, 2013, 80 three-way calls involving a phone in a specific area of a correctional facility where Mr. Locknick was incarcerated, Ms. Doucet’s mobile phone and Mr. Stiller’s mobile phone. Similar analysis revealed 20 such three-way calls involving the “Dole” (identified as Stiller) mobile phone after June 15, 2013.

[298] As of June 28, 2013, incoming calls from the Sarnia jail were identified through the Doucet number recorders. The number recorder data also revealed similar three-way calling with 22 other numbers including some three-way calls with the accused Gatt and 18 three-way calls with “Oswald Cobblepot” believed to be the accused, McKnight.

(vii) Affidavit Evidence Directed to the Investigative Necessity Requirement

[299] At paras. 115 to 138 of the affidavit, P.C. Sieberer reviews the historical use of confidential informants, physical surveillance, and judicial authorizations in the investigation and explains why those techniques on their own, or in combination, are unlikely to develop the evidence necessary for a successful prosecution. He also explains why other investigative methods are unlikely to succeed in developing that information. As a result, he expresses his belief that the interception of private communications remains the last reasonably practical investigative alternative. I will summarize his evidence in that regard, below.

[300] In deposing to the limits of the investigative techniques employed by police, up to the date of the authorization application, P.C. Sieberer states:

a) Confidential informants – Informant #1 was instrumental in the investigation but had: limited knowledge of the intimate drug/business relationship between Locknick, Doucet and Stiller; no knowledge of stash houses; and no knowledge of Mr. Locknick’s suppliers or any other drug dealers that may be working for Mr. Locknick. Informant #1 was not willing to testify in court and was not willing to assist in the prosecution. Informant #2 was not willing to testify in court and was not willing to assist in the prosecution. P.C. Sieberer believed the use of informants had largely been exhausted as an investigative tool, at the time the affidavit was sworn.

b) Physical surveillance - surveillance of Mr. Stiller had proved useful in identifying associates, vehicle descriptions, meeting locations, travel locations, possible drug customers, possible stash houses and observations of activity consistent with drug trafficking. However, surveillance of Mr. Stiller proved difficult because of the counter surveillance techniques in which he engaged. Further, the proximity required for an officer to visually verify a hand to hand drug transaction could possibly compromise the investigation. P.C. Sieberer deposed that based on information available to him, he believed that physical surveillance, alone, would likely fail to provide the necessary evidence required to prosecute all the individuals involved in the drug trafficking network. However, surveillance together with an authorization to intercept private communications would assist in the investigation and provide further information and evidence necessary to successfully prosecute the individuals involved.

c) Production orders evidenced incoming and outgoing calls from Mr. Stiller’s mobile phone but failed to positively identify the caller or the subject matter of the conversation. P.C. Sieberer states that although information obtained from production orders together with physical surveillance and tracking data, assists in establishing the “grounds to believe that drug offences are being committed”, on its own, it fails to provide the evidence necessary for a successful prosecution.

d) Dialed number recorders – the information obtained from dialed number recorder warrants was useful in establishing the belief that Mr. Locknick would call Ms. Doucet and Ms. Doucet would then use a three-way calling feature to contact Mr. Stiller. By itself, this information was limited to establishing associations between phone numbers and the pattern of communication. The information from the number recorders does not positively identify the caller or the subject matter of the conversation. While the information from the number recorders assists in establishing the grounds to believe that drug offences are being committed, it fails to provide the necessary evidence to successfully prosecute the matter. P.C. Sieberer believed that gaining access to the content of the communications would allow officers to gather the necessary evidence to prosecute the offences identified in the affidavit.

e) Tracking warrant – the information obtained from tracking data on Mr. Stiller’s vehicle was helpful in identifying two potential stash houses and locating Mr. Stiller, while conducting physical surveillance. However, P.C. Sieberer believed that the continued use of a tracking device, as an investigative tool, without a parallel authorization to intercept private communications would not provide the evidence necessary to successfully prosecute the matter.

f) Undercover operations – the investigative team did not believe that the use of undercover officers was a viable option in the investigation. Windsor police records documented that Mr. Locknick and Mr. Stiller had known each other since at least 2010, and Mr. Locknick and Ms. Doucet lived together in a common-law relationship. P.C. Sieberer expressed detailed reasons for his belief that the use of an undercover officer would fail, if introduced to Mr. Locknick in a jail setting and would not provide the necessary information needed to infiltrate the drug trafficking network if introduced to Mr. Stiller.

g) Agent of the state – Informant #1 and Informant #2 would not testify in court. The investigative team did not have the option of using a state agent.

h) Crime Stoppers – no information had been generated through the Crime Stoppers program to date. Further, such information comes from anonymous sources and while it may be helpful in the investigation of some cases, it would be of limited value in a court proceeding.

[301] P.C. Sieberer’s stated belief was that in the circumstances, traditional investigative techniques would not allow officers to meet the stated investigative goals and an authorization to intercept private communications was the last reasonable investigative technique to do so.

(viii) The Extent of Excisions to the Affidavit

[302] Mr. Locknick submits there are several aspects of the content of P.C. Sieberer’s affidavit that warrant excision, which may be summarized as follows:

a) Information with respect to his visitor log, while incarcerated, must be excised, for reasons set out previously.

b) The physical surveillance conducted on Mr. Stiller is irrelevant to the issue of whether there were reasonable grounds to suspect that Mr. Locknick committed or would commit the offences specified in the affidavit.

c) The affiant erroneously refers to a continuing non-association order between Mr. Locknick and Ms. Doucet. Those references must be excised.

d) The DNR authorizations could not have issued on the strength of the respective ITOs in support (as excised), and accordingly, the information obtained from the execution of those warrants must be excised from the affidavit.

e) P.C. Sieberer erroneously indicates that Mr. Locknick was “planning to plead guilty to some of the April 17, 2012 charges”, at para. 3, page 2 of the affidavit. However, at the time the affidavit was sworn, Mr. Locknick had already pled guilty to some of the charges (in May 2013) and was awaiting sentencing.

f) At para. 5, page 3 of the affidavit, P.C. Sieberer indicates that Mr. Locknick had been charged as a result of the May 27, 2013 crystal methamphetamine incident at the Windsor jail. However, at the time the affidavit was sworn (July 16, 2013), Mr. Locknick had not yet been charged with that offence and he was not charged until July 25, 2013.

g) Mr. Locknick revisits his asserted discrepancy in the manner in which incoming calls from the payphone located on B range at the Windsor jail are recorded on the number recorder log sheet with respect to the Doucet number recorders. In his affidavit, P.C. Sieberer referred to the result as a “blank space”, while P.C. Hamlin referred to the result as a “private number” in the content of the ITOs that he had previously sworn. Mr. Locknick submits that P.C. Sieberer’s description is false and misleading and the information about the results of the number recorders should, therefore, be excised from the affidavit.

[303] I will address each of Mr. Locknick’s concerns, in turn, below.

[304] For reasons previously stated, the information with respect to Mr. Locknick’s visitor log produced by a representative from the Windsor jail must be excised from the affidavit, specifically paras. 86, 87, 142(k), 143(j) and everything in para. 147 (a), after the first sentence.

[305] Similarly, for reasons previously stated, information with respect to the non-association order between Ms. Doucet and Mr. Locknick must be excised from the affidavit.

[306] The applicant submits that since the DNR authorizations could not have issued (in his view) the information from the number recorders and related production orders was unlawfully obtained and must be excised. I disagree. Since I have already determined that each of the DNR warrants could have issued, there is no basis to excise that information from the affidavit.

[307] I am satisfied that the references to Mr. Locknick having been charged with respect to the May 27, 2013 incident, as at the time that the affidavit was sworn, was inaccurate and should be excised. I do not find this error was the result of an active attempt to mislead. The more material aspects of the information concerning the May 27, 2013 incident, as deposed to by P.C. Sieberer are accurate, including the circumstances of the May 27, 2013 incident itself, and that Informant #1 provided information about the incident that was subsequently confirmed through independent police investigation. Those aspects of the affidavit need not be excised.

[308] Similarly, I find the statement that Mr. Locknick is “planning to plead guilty” to some of the April 17, 2012 charges, at a time when he had already pled guilty to some of those charges, is a minor error and the inaccurate information should be excised.

[309] I find that neither error impacts, in any way, on the existence of the grounds to grant the authorization and related orders, and in the context of the totality of the content of the affidavit, I find that those errors had no potential to mislead the authorizing judge about the existence of the requisite grounds.

[310] The applicant also revisits the asserted discrepancy in the manner in which certain information from the number recorders was described by P.C. Hamlin and P.C. Sieberer - the “private number” versus the “blank space” issue. I have already determined that excision is not warranted on that basis and I find that reasonably, there was no possibility that the authorizing judge could have been misled by the difference in that description. More fundamentally, the alleged discrepancy is not made out. One officer’s description relates to the results of the number recorder on the 961 Edward Avenue landline and the other officer’s description relates to the number recorder results of the Doucet mobile number.

(ix) Review of the Authorization

[311] I am satisfied, that the affidavit, as excised, and read as a whole, contains reliable evidence that might reasonably be believed, on the basis of which the authorizing judge could have concluded that the requirements of probable cause and investigative necessity were met and therefore he could have granted the authorization. I will explain below.

(a) Probable Cause Requirement

[312] Dealing with the first requirement, the affiant is required to establish a reasonably grounded belief in the commission of an offence and the collection of evidence about it. That standard is not equated with proof beyond a reasonable doubt or a prima facie case. The standard to be met is one of reasonable probability: see Debot, at p. 1156 and Nero, at para. 117.

[313] In Nero, at para. 116, the Court of Appeal states:

The probable cause requirement and the capacity of the contents of the supportive affidavit to satisfy it involve a commonsense approach that takes into account the nature of the subject-matter investigators seek to acquire: future communications, not yet in existence, perhaps not even in contemplation at the time the authorization is sought or granted. These communications may never take place. But if they do, the likelihood of anything said affording evidence of a listed offence is enhanced by their probable participation in that offence. It is in that sense that interception of what they say will afford evidence of the offences.

[314] Throughout his affidavit, P.C. Sieberer expresses his subjective belief that Mr. Locknick, Ms. Doucet and Mr. Stiller are involved in a drug-trafficking network, his belief with respect to their respective roles in the network and the manner in which they communicate. In my view, based on the content of the affidavit, it was open to the authorizing judge to conclude that his belief in that regard was reasonable.

[315] In the context of considering the challenges to the DNR authorizations, I reviewed the particulars of the information provided by Informant #1 and Informant #2, which is also set out by the affiant in his affidavit in support of the application for the authorization.

[316] Informant #1 presented with a history of providing reliable information to police in other investigations and without a history of convictions for crimes of dishonesty. In October 2012, Informant #1 provided information to police, sourced from a person directly involved, that Mr. Locknick was engaged in drug trafficking activities while incarcerated on B range at the Windsor jail. He was said to do so by utilizing three-way calls to persons that included his girlfriend Felicia. The Informant provided information that Mr. Stiller was working for Mr. Locknick and selling drugs on his behalf. He or she provided a specific phone number and a specific vehicle (not registered to Mr. Stiller) said to be used by Mr. Stiller to do so. Mr. Locknick had prior conviction for a CDSA trafficking related offence, among others. He was facing charges for a CDSA related offence at the time the information was provided. Database queries confirmed that Mr. Locknick and Mr. Stiller were associates (and a police occurrence report from July 19, 2010 confirmed that Mr. Locknick and Mr. Stiller were in a vehicle together on that date). Database queries supported that Felicia Doucet was Mr. Locknick’s girlfriend.

[317] The physical surveillance of Mr. Stiller confirmed that he operated the vehicle identified by Informant #1. He was seen to engage in activities consistent with hand to hand drug transactions, on a number of occasions, as well as to engage counter-surveillance techniques. Informant #1 provided ongoing information about his or her periodic direct purchases of cocaine from Mr. Stiller.

[318] Information provided by Informant #2 in March 2013 indicated that Mr. Locknick was attempting to “run his drug business from jail” by using three-way calls to his home phone number (which Informant #2 provided). Subscriber information for the phone number provided by the Informant revealed that it was registered to what reasonably appears to be a slight misspelling of Ms. Doucet’s name and associated with 961 Edward Avenue. The “number-specific” information provided by Informant #2 was consistent with the “identity-specific” information provided by Informant #1 about the method by which Mr. Locknick was initiating three-way telephone calls from jail.

[319] As I previously indicated, in my view, the information provided by Informant #1 was capable of being considered relatively compelling and the informant was a proven reliable source of information. Further, important aspects of the information provided by that informant were confirmed by other information during the course of the investigation including: Mr. Stiller’s apparent involvement in trafficking activities; Mr. Stiller’s operation of the vehicle identified by Informant #1; and Informant #1’s information that Mr. Locknick was involved in the “crystal meth” incident at the Windsor jail on May 29, 2013.

[320] Information from Informant #2 was consistent with information from Informant #1 with respect to the method of communication said to be employed by Mr. Locknick to direct trafficking activities from jail, with an additional detail provided by Informant #2 about the specific phone number Mr. Locknick was said to call to initiate three-way calling.

[321] The authorizing judge also had evidence of the results of the DNR authorizations before him, which reveal that calls from prisoner accessible telephones located in the specific areas in which Mr. Locknick was incarcerated in the Windsor and Sarnia jails, contacted the landline at 961 Edward Avenue, and were routed to Ms. Doucet’s mobile phone, and then through the use of three-way calling, contact was made with a mobile phone used by Mr. Stiller a total of 80 times in the period from April 26, 2013 to May 27, 2013 and a further 20 times between June 15, 2013 and June 25, 2013 (the latter utilizing a new mobile phone number that was confirmed to be associated with Mr. Stiller, under the alias of Bob Dole).

[322] The authorizing judge had before him evidence of the information derived from the production orders, which reveals 428 contacts between Ms. Doucet and Mr. Stiller’s mobile phones between January 1, 2013 and March 31, 2013 and contact between Mr. Stiller’s mobile phone and phone numbers associated with numerous other alleged known drug dealers in the City of Windsor.

[323] Number recorder information confirmed a total of 459 three-way calls between April 27, 2013 and June 25, 2013, originating from payphones at the Windsor jail and the Sarnia jail that were ultimately routed to Ms. Doucet’s mobile phone whereupon third party numbers were called. Apart from Mr. Stiller’s mobile phone number, several of the other phone numbers involved in the three-way calls were believed to be associated with persons involved in drug trafficking in the City of Windsor.

[324] In my view, it was open to the authorizing judge to view the information obtained through the use of the number recorders and production orders as tending to confirm the information provided by Informant #1 about the mode of communication employed by Mr. Stiller, Ms. Doucet and Mr. Locknick in the course of the alleged criminality.

[325] Mr. Locknick states that to the extent that independent investigation by the police provided any corroboration with respect to Informant #1’s information about actual criminal conduct, it is only with respect to criminality on the part of Mr. Stiller.

[326] In my view, the applicant’s concern in that regard, is answered by the information obtained from the use of number recorders and production orders, which was capable of being relied upon by the authorizing judge as corroboration of Informant #1’s information that while incarcerated, Mr. Locknick was communicating with Mr. Stiller, through three-way telephone calls facilitated by Ms. Doucet. The frequency with which that type of communication transpired, was relatively extensive, on an ongoing basis. Other three-way calls originating from prisoner accessible phones located in Mr. Locknick’s place of incarceration, involved Ms. Doucet’s mobile phone and phone numbers associated with other individuals said to be known to be engaged in drug trafficking. That evidence, together with the surveillance of Mr. Stiller, could reasonably be viewed as consistent with aspects of Informant #1’s information.

[327] More fundamentally, the issue is not whether confirmatory support for every element of the tip is developed through independent police investigation. Instead, the issue is whether, in the totality of the circumstances, there are sufficient circumstantial guarantees of trustworthiness of the informant’s disclosure such that the information provided may be safely relied upon when considering whether P.C. Sieberer’s stated belief that Mr. Locknick, Ms. Doucet and Mr. Stiller were committing the specified offences, was a reasonable one.

[328] The police are not required to prove the crime against each individual before authorization to investigate the criminality can be granted. The police must show that their belief of criminal conduct is a reasonable one. That belief can reasonably be founded on informant information provided that in the totality of the circumstances, the information carries with it the requisite circumstantial guarantees of trustworthiness, such that it can be safely and reasonably relied upon.

[329] Overall, I am satisfied that the execution of the DNR authorizations, together with the other information set out by the affiant, resulted in what could be viewed as corroboration of important elements of the information provided by Informant #1, to the point that all of the informant’s information was capable of being safely relied upon, together with the balance of the totality of the circumstances set out in the affidavit, to establish the requisite reasonable grounds to believe that the offences specified by the affiant had or were being committed and that Mr. Locknick, Mr. Stiller and