CITATION: R. v. White, 2017 ONSC 5647

COURT FILE NO.: CR-16-139

DATE: 20170926

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TERRY WHITE

Defendant/Applicant

L. Boyd, for the Crown

A. Perrin, for the Defendant/Applicant

HEARD: September 18, 2017

REASONS FOR JUDGMENT

DE SA J.:

Overview

[1] The Applicant brought a s. 8 application seeking to exclude 141 grams of cocaine which were seized by way of a warranted search of his address and his vehicle. It was the Applicant’s position that the Information to Obtain (ITO) in support of the warrants lacked the requisite grounds in that they were entirely dependent on information received from unproven confidential sources. The Applicant also argued that the affiant omitted relevant information necessary for the issuing justice to assess the sufficiency of the grounds. According to the Applicant, these deficiencies taken together required exclusion of the evidence pursuant to s. 24(2).

[2] After hearing evidence from the affiant and after receiving the submissions of counsel, I dismissed the application. Below are the reasons for my decision.

The Facts

Source Information

[3] Between June and September, 2015, the affiant, Chris Prout, received information from three separate confidential informants about a drug dealer named TJ Hurst (“TJ”) who was selling cocaine. Each of the informants had been purchasing cocaine from TJ. Each of the informants were cautioned and advised by the affiant that if the information they were providing was false, they could face charges of obstruct police and public mischief.

[4] In June 2015, the affiant received information from Source 1 (CI #1). CI #1 told the affiant that TJ was selling cocaine in Victoria Harbour. He advised the affiant that TJ kept the cocaine in a safe in his house. According to CI #1, TJ would usually sell cocaine in quarters and balls, and CI #1 gave specifics on TJ’s pricing on a ball and a gram of cocaine.

[5] In September 2015, the affiant received information from a second confidential informant regarding TJ. Source 2 (CI #2) told the affiant that TJ sold “oxys” and lots of cocaine. According to CI #2, TJ always had a certain amount of cocaine on hand. TJ would keep his drugs and his money in a safe. CI #2 described the type of “oxys” as well as the approximate amount of cocaine TJ was currently keeping in his safe. According to CI #2, TJ drove a blue car and would also keep cocaine in his vehicle. CI #2 told the affiant that TJ’s wife’s name was Jen, and TJ lived on the corner of Ellen Street and Park Street in Victoria Harbour.[^1]

[6] The affiant spoke with a third source (CI #3) in September 2015. Like CI #1 and CI #2, CI #3 had also been purchasing cocaine from TJ. According to CI #3, TJ kept ounces of cocaine in his safe. CI #3 also told the affiant that TJ lived on a corner lot in Victoria Harbour.

Corroboration

[7] Police checks indicated that TJ Hurst was a known nickname for a Terry Hurst born 1975/08/13. Through his birthdate and address information, the affiant determined that Terry Hurst was also using the name of Terry White. The affiant had “personal” knowledge of TJ Hurst from his involvement with a local baseball league. The affiant was able to confirm through an MTO picture that Terry White was the same person he knew to be TJ Hurst. Checks indicated that TJ Hurst a.k.a. Terry White lived at the address of 91 Richard Street in Victoria Harbour, Ontario.

[8] Police checks indicated that in June of 2009, the Southern Georgian Bay OPP had received an anonymous tip that TJ Hurst was selling cocaine in the Town of Midland and the surrounding area.

[9] On September 9, 2015, police drove by 91 Richard Street in Victoria Harbour, Ontario and observed a blue Toyota Matrix in the driveway. Checks on the blue Matrix indicated that the vehicle was registered to a female by the name of Jennifer Scott at 91 Richard Street in Victoria Harbour, Ontario. From his personal experience, the affiant knew Jennifer Scott to be the wife of TJ Hurst (a.k.a. Terry White). This was consistent with the information provided by CI #2. The affiant was also able to confirm that 91 Richard Street was on the corner of Ellen Street and Richard Street which was consistent with the information provided by Informant #2 and #3.

Warrant Execution and Seizures

[10] On the basis of the information above, police applied for telewarrants for both the blue Matrix and the Applicant’s house at 91 Richard Street in the late evening of September 9, 2015. Police received warrants to search the address on September 10, 2015.

[11] Upon executing the warrant, police located 28.3 grams of cocaine in a safe in what was believed to be the Applicant’s bedroom closet. The Applicant was arrested at his office and the blue Matrix was searched in the parking lot. Police located another 113 grams of cocaine in a Tim Horton’s bag inside the centre console of the vehicle.

[12] In total, police seized just over 141 grams of cocaine from both the house and the car.

Application for Leave to Cross-Examine

[13] The Applicant initially sought to cross-examine on 4 different areas: 1) whether the informants were anonymous sources or known informants; 2) if known informants, did the affiant reference the criminal antecedents, motive, and history of reliability for each of the informants; 3) the nature of the relationship the affiant had with the Applicant; 4) given the date stamp of August 9, 2015 on the warrant application, whether it was really “impracticable” to go before a justice to obtain the warrant.

[14] The Crown confirmed that the informants were “known”. In addition, after reviewing the warrant, it became evident that the date stamp of August 9 was just a mistake with the stamp. The warrant was clearly submitted to the issuing justice on September 9, 2015. Accordingly, only two of the areas raised could possibly be relevant as a basis to impugn the adequacy of the grounds.

[15] While the Applicant initially wanted to see the criminal records of the informants (if any), the Crown asserted privilege over the criminal records. According to the Crown, to disclose the criminal records or even identify whether or not a specific informant had a criminal record may narrow the pool and thereby encroach on the privilege. While the Crown could not disclose the criminal antecedents of the informants, the Crown agreed that if there were any relevant omissions pertaining to the criminal antecedents of any of the informants, this fact would be disclosed.

[16] After consulting the affiant, the Crown confirmed that the unedited ITO made no reference to whether or not the informants had criminal records. Accordingly, the Applicant was granted leave to cross-examine on why the criminal records and history of the informants were omitted. I also granted leave to cross-examine on the affiant’s personal knowledge of TJ Hurst as an area potentially relevant to the general credibility of the affiant.

Evidence of the Affiant

[17] The affiant testified that he had made the requisite inquiries regarding the criminal history and past reliability of the informants. In his view, nothing about their criminal antecedents warranted inclusion in the ITO. The informants did not have crimes of dishonesty, or instances where they had been demonstrated to be “untruthful” to either the court or the police. According to the affiant, each of the informants were known to the affiant and had provided “reliable” information in the past. He acknowledged however that this information was omitted entirely from the warrant. He admitted that it should have been included.

[18] The affiant also testified that he “personally” knew the Applicant through his wife Jen. The affiant had coached Jen’s son, the Applicant’s stepson. He had come to know about the Applicant through this relationship with his stepson and his wife. He acknowledged in his testimony that he did not have a close “personal” relationship with the Applicant, however he knew him to be TJ Hurst.

Applicant’s Position

[19] The Applicant takes the position that the warrant lacks the requisite grounds. According to the Applicant, the affiant’s extensive reliance on “unproven” sources, and the lack of meaningful corroboration render the grounds deficient.

[20] In addition, the Applicant argues that the affiant’s failure to include or reference the informants’ criminal histories is a material omission. He also argues that the affiant’s overstatement of his relationship with the Applicant as a “personal” relationship makes the ITO misleading.

[21] Considering the deficiency in the grounds, the “material” omissions and misleading information, the Applicant takes the position that the evidence should be excluded under s. 24(2).

Analysis

Was the Warrant Properly Issued?

Test on Review

[22] The test governing the review of a search warrant is clear. The reviewing judge is not entitled to substitute his or her view for that of the issuing judge. Rather, the reviewing judge is simply to determine whether the issuing judge could have granted the warrant on the basis of the reliable information contained in the affidavit, as amplified on review.The reviewing judge must not set aside the authorization unless he or she is satisfied on the whole of the material presented that there was no basis for it: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 26. As explained by the Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40:

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

Confidential Informant Information

[23] Where an affiant relies on information obtained from a police informer, the reliability of the information must be assessed in light of the “totality of the circumstances.” In R. v. Debot, 1989 13 (SCC), [1989] S.C.J. No. 118, the Supreme Court articulated 3 criteria to assist in reviewing and assessing the reliability of the information. The Court explained at para. 53:

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

[24] Similarly, as Sopinka J. stated in R. v Garofoli at para. 68:

There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

a. The degree of detail of the “tip”;

b. The informer’s source of knowledge;

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

[25] Again, weaknesses in one area may be compensated by strengths in another. The particular circumstances must be examined in each case. The real question to be determined in each case is whether the information is sufficiently reliable to substantiate the search.

The tip was compelling (first hand and detailed)

[26] In this case, a review of the warrant confirms the informant information is “first hand” information (observation) and the nature and “quality” of the information removes it from the realm of rumor and gossip. The tips are clearly sourced. They reference the direct experience and observations of the informants in the context of their dealings with the Applicant. As noted in R. v. Markiewicz, 2014 ONCA 455, the first hand observations and experience of the sources makes the information compelling. Taken together, the tips include:

a. A nickname for the Applicant (TJ);

b. The nature of the drugs that the Applicant was selling;

c. Specific pricing for the drugs in different quantities;

d. Specific information about the type of drugs purchased (oxys and cocaine), the location where additional drugs were observed (safe), and the quantities and type of drugs observed;

e. Location of the Applicant’s house (corner lot);

f. Background details known about TJ including the car he would drive, and his wife’s name.

The source was sufficiently credible

[27] All three sources were known to the police (not anonymous). The fact that the informants were known, and faced consequences if they were to provide false information enhances their credibility; See R. v. Chor-Yin Choi, 2013 ONSC 291.

[28] Obviously, the amplification evidence elicited during the cross-examination indicating that the informants had proven “reliable” in the past cannot be used at this point by the Crown to strengthen the grounds. However, nothing elicited in the amplification evidence would undermine the credibility of the informants. While the Applicant suggests that the informants’ connection to the drug subculture undermines their credibility, it is hard to see how else they would be in a position to provide this type of information. Indeed, in my view, the fact that the informants were entrenched in the drug subculture enhances the reliability of the specific information given. In other words, the fact that they are “buyers” of drugs would explain their “intimate” knowledge of TJ’s drug dealing practices. See R. v. Chor-Yin Choi, supra.

The tip was corroborated

[29] Various pieces of the information supplied by the informants were confirmed by police checks and surveillance. The Applicant was known by the affiant to go by the name TJ. The Applicant’s house was confirmed to be located on a corner in Victoria Harbour, and he was associated with Jennifer Scott. The blue car identified by CI #2 was observed in the driveway of the Applicant’s house. An anonymous tip from 2009 also confirmed a prior history with cocaine.

[30] More significantly, three separate informants supplied consistent information regarding TJ’s drug dealing in Victoria Harbour, the nature of the drugs he sold (cocaine), and the fact that he kept his drugs in a safe. Clearly, the consistency of such information constituted meaningful corroboration of the informant information.

[31] Again, the information contained in the affidavit must be considered in its entirety in assessing whether the requisite grounds exist. In certain cases, an unknown source may require a greater measure of corroboration to justify the police acting on it. In other cases, a very compelling tip from an unknown source with minimal corroboration may be sufficient to act. The assessment is very much contextual, and is determined by whether the source information combined with the specific corroboration is sufficient to make out the requisite grounds. Does the information taken together provide reasonable grounds to believe that evidence of the offence will be found in the location sought to be searched?

[32] In this case, three independent informants provided consistent “first hand” accounts about their cocaine purchases from the Applicant. On the basis of the information, the police clearly had reasonable grounds to believe that the Applicant would be in possession of drugs at his address and in his vehicle. The police were able to confirm the Applicant’s identity, and to locate his residence and vehicle where the drugs were described to be located. In the circumstances here, the requisite grounds had been obtained and the search of these locations was justified.

Amplification Evidence: Were there “Material Omissions”?

[33] The Applicant takes the position that the affiant’s choice to omit the criminal antecedents of the informants is contrary to the Ontario Court of Appeal’s decision in R. v. Rocha, 2012 ONCA 707 and amounts to a breach of the affiant’s duty to provide full, fair and frank disclosure and accordingly is a breach of s. 8.

[34] Obviously, to avoid the risk of a material omission, it is always best practice for the police to provide an informant’s criminal record to the issuing justice. That being said, the failure to include the record does not itself amount to a breach. See R. v. Rose, 2015 ONCA 183.

[35] It is only where the failure to include the criminal record of the informant amounts to a “material” omission that s. 8 is engaged. It is always the “totality of the circumstances” which are to be considered in the face of any omissions, negligent or otherwise. As the Ontario Court of Appeal explained in R. v. Nguyen, 2011 ONCA 465 at para. 57 and 58:

[57] That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice. [Emphasis added]

[58] There may have been some flaws in the ITO presented by D.C. Mason in support of the application – the confusing reference to both 304 and 302 Sheppard Ave. in the paragraph cited above, for example. Few applications are perfect. The flaws did not go to the heart of the application, however, and – for the reasons outlined above – the trial judge’s overall conclusion that the ITO “was carelessly drafted, materially misleading and factually incomplete” is simply not supported on the record. [Emphasis added]

[36] In this case, nothing would indicate that the inclusion of the criminal antecedents of the informants would have made any difference to the warrants’ issuance. There was nothing in their criminal antecedents that would suggest they had provided false information in the past or that could impugn the reliability of their information. Accordingly, the omission of the criminal records does not impact the s. 8 inquiry.

[37] Moreover, I do not agree that the affiant overstated his relationship with the Applicant. While the affiant may have not been a close friend of the Applicant, he clearly “personally” knew him. Even if the phrasing could be characterized as an overstatement, it could not have any possible impact on the issuance of the warrant.

[38] Having regard to the totality of the information, including any alleged omissions or overstatements, it is clear that the warrant would have issued. As such, I find that there is no s. 8 breach.

Section 24(2) Analysis

[39] If I am incorrect on the s. 8 analysis, I would still admit the evidence under s. 24(2).

[40] The Supreme Court elucidated the formulation of the s. 24(2) analysis in the decisions of R. v. Grant, [2009] S.C.C. 32 and R. v. Harrison, [2009] S.C.C. 34. In Grant at para. 71, the court summarized the framework for determining whether the administration of justice would be placed into disrepute if the evidence was to be excluded:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[41] In this case, the breach, if any, would be minor and inadvertent. If the grounds were found to be deficient, it would be a very close call. Moreover, the affiant omitted the criminal records of the informants because of a genuine belief that they had no relevance. The police applied for a warrant and were clearly acting in good faith.

[42] There is no doubt that the nature of the claimed privacy interest is at the high end of the spectrum. However, nothing in the police conduct would suggest that the Charter protected interest was disregarded.

[43] Finally, the state would have a strong interest in adjudication on the merits. The nature of the alleged criminality is very serious. The trafficking of hard drugs for profit has been repeatedly emphasized to be an extremely serious offence. The evidence itself is necessary to the Crown’s case.

[44] Given the nature of the breach, if any, and the effect of excluding the drugs – reliable evidence that is essential to proof of the Crown’s case – at trial, the repute of the criminal justice system would be better served by admitting the evidence. In the circumstances of this case, I find that excluding the evidence would bring the administration of justice into disrepute.

[45] The application is dismissed.

Justice C.F. de Sa

Released: September 26, 2017