R. v. Flannigan, 2017 ONSC 5031
CITATION: R. v. Flannigan, 2017 ONSC 5031
COURT FILE NO.: 28/17
DATE: 20170824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW FLANNIGAN
Applicant
Benjamin Eberhard, for the Crown
Aaron Prevost, for the Applicant
HEARD: August 23, 2017
RULING ON APPLICATION PURSUANT TO S. 8 and S. 9 OF THE CHARTER
justice j.n. morissette
[1] The applicant is charged with production of Marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act (CDSA) and possession of Oxycodone contrary to section 4(1) of the CDSA.
[2] The London Police Service (LPS) received a tip on November 6, 2015 at around 11:06 a.m. through the Drug Intelligence Information line from an individual named Pamela Geerts about a grow operation at 276 Fairhaven Circle, London, she had observed the day before in the basement of the applicant’s residence.
[3] The officer manning the hot line, Officer Robert Popovich conducted the usual corroboration through Versadex and Canadian Police Information Centre (CPIC) database inquiries, for both individuals, which confirmed that the applicant was indeed the owner of the residence in question. It further confirmed that the complainant had never provided information to police in the past.
[4] Officer McFarlane, an experienced drug officer from the Royal Canadian Mounted Police (RCMP) who had been seconded to the LPS at the time was given the following information received by Officer Popovich:
i. The complainant Pamela Geerts met Andrew Flannigan on a dating web site and dated for four months.
ii. Andrew Flannigan lives at 276 Fairhaven Circle.
iii. Andrew Flannigan lives alone.
iv. The complainant Pamela Geerts use to stay at the residence once or twice a week.
v. The complainant Pamela Geerts and Andrew Flannigan are no longer in a relationship.
vi. Andrew Flannigan is growing marihuana in his basement.
vii. The marihuana plants were last seen yesterday November 5, 2015.
viii. The marihuana plants are hidden behind a large black tarp in the corner of the basement.
ix. There are 12-15 marihuana plants in pots.
x. The marihuana plants are approximately 3 ½ feet in height.
xi. The marihuana plants have started to bud.
xii. The marihuana plants are growing under very bright lights.
xiii. There are fans ventilating the area and blowing outside to the back yard.
xiv. All the windows in the basement are covered with blankets.
xv. Andrew Flannigan had five friends over helping him tape the tarp into position.
xvi. Andrew Flannigan works as a personal support worker at McCormick Home, located at 2022 Kains Road London, Ontario.
[5] Officer McFarlane contacted the number given by the complainant and talked to a person calling herself Pamela Geerts and she reiterated the same information provided to Officer Popovich, and added the following information:
i. The marihuana plants are behind a black tarp in the corner of the basement.
ii. That Andrew Flannigan was bragging that he will make $5000.00 selling the marihuana that he produces.
iii. That Andrew Flannigan advised the money will be spent on a trip to Mexico.
iv. That Andrew Flannigan has sold marihuana in the past to cover his court costs.
[6] Officer McFarlane also conducted the Versadex and CPIC inquires corroborating the usual innocent details of both individuals.
[7] Based on his experience, Officer McFarlane believed he had reasonable and probable grounds that an offence has been committed, that an unlawful production of marihuana was present at the applicant’s residence.
[8] On November 9, 2015, based on an Information To Obtain (ITO) sworn by the affiant Officer McFarlane, Justice of the Peace Langlois issued the warrant at 12:30 p.m.
[9] The applicant was arrested at 2:25 p.m. on November 9, 2015.
[10] The warrant was executed at 2:46 p.m. on November 9, 2015.
[11] 19 plants of marihuana were found in the basement.
The issues:
[12] Did Officer McFarlane provide the issuing Justice of the Peace sufficient information in the ITO that he had “reasonable and probable grounds to believe that the applicant did unlawfully produce marihuana contrary to section 7 (1) of the CDSA?
[13] Was the detention and the arrest of the applicant authorized by law?
The law and analysis:
[14] The test for the reviewing Justice of a search warrant, is to determine whether or not there existed sufficient reasonable and probable grounds of the crime alleged, for the issuing Justice of the Peace to issue the warrant.[^1]
[15] The source of information came not from a confidential source, but rather from a tip from a person who was willing to testify about what she saw.
[16] The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.[^2]
[17] The applicant contends that Officer McFarlane was required to corroborate the information given to him by Ms. Geerts in order for the Justice of the Peace to be satisfied that a crime had been committed. He relies upon the test laid out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140.
[18] In Debot, the Court dealt with a police search based upon information provided to them by a confidential informant. The Court held that special considerations to confirm the credibility of the information provided by an anonymous informant is required. It has been considered as the three Cs’: compelling, credibility, and corroboration.
[19] It is conceded that the information provided by the witness is compelling. At issue is whether it is credible and corroborated.
[20] In order to assess the credibility of the information the court must look at the degree of detail of the “tip”; the informer’s source of knowledge; and indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
[21] The degree of detail was extensive. The source was first hand and in real time. Having said this, this individual had not ever provided information in the past to police.
[22] Does this latter point make the information received any less reliable?
[23] Does the fact that none of the information received was corroborated, through surveillance or otherwise?
[24] In my view Officer McFarlane was not required to carry out a broad investigation in order to demonstrate to the J.P. that Ms. Geerts’ story was capable of being reasonably believed. The details provided by Ms. Geerts were such as to provide reasonable and probable grounds that a production was indeed present as described. These details, in my view certainly met the requirements set out in Debot.
[25] The fact that Officer McFarlane did not engage in any surveillance of the applicant is immaterial, as the charge was not one of possession for the purpose of trafficking, but rather of producing. The fact that the amount of plants was small did not warrant a hydro search.
[26] The warrant was validly issued and therefore there was no breach of his Charter rights.
Was the detention and arrest lawful?
[27] Officer McFarlane had reasonable grounds to believe that the applicant had committed the indictable offence of producing marihuana. Those grounds were objectively reasonable.
[28] Officer McFarlane was authorized to detain and arrest the applicant even before the execution of the warrant.
[29] There was no breach of his rights and the search of the vehicle incident to arrest was valid.
Disposition:
[30] The application is dismissed.
Justice J.N. Morissette
Released: August 24, 2017
CITATION: R. v. Flannigan, 2017 ONSC 5031
COURT FILE NO.: 28/17
DATE: 20170824
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW FLANNIGAN
Applicant
Ruling on application pursuant to s. 8 and s. 9 of the charter
Justice J.N. Morissette
Released: August 24, 2017
[^1]: R. v. Garafoli 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, at paras. 55-56; R. v. Morelli 2010 SCC 8, [2010] S.C.J. No. 8, at paras. 40-41
[^2]: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54.