R. v. Raymond, 2017 ONSC 6920

Court File and Parties

Court File No.: CR-15-40000545-0000 Date: 2017-11-21 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Richard Raymond

Counsel: Glenn Brotherston, for the Crown Hans Cedro, for Mr. Raymond

Heard: 2 September 2017

Judge: S.A.Q. Akhtar J.

Factual Background and Overview

Factual Background

1On 16 July 2014, police executed a Controlled Drugs and Substances Act warrant to search the residence at 18 Holmes Avenue, Unit 606, a high rise condominium building, and two motor vehicles: a black Audi, licence plate 71JA32 and a black BMW, licence plate 76JA13. The target of their investigation was Richard Raymond, whom they found inside the apartment. Upon being told of his arrest, and after being read his rights to counsel, Mr. Raymond handed over two sets of keys telling the police where his two cars were located in the parking lot of the building.

2A search of the apartment yielded no contraband but the police found documentary evidence linking Mr. Raymond to the Audi. When the police searched that vehicle, they noticed that the centre console housing an an audio unit, appeared askew. When one of the officers removed the frame, he found it became loose without much effort as did the audio unit. Removing the unit, the officer located a .9mm Beretta hidden in the centre console behind the unit. Retrieving the firearm, police found it to be loaded with a magazine containing 10 bullets.

3Mr. Raymond seeks the exclusion of the firearm from his trial on the basis that the Information to Obtain the warrant (ITO) was deficient. As a result, he submits that his section 8 rights under the Charter of Rights and Freedoms were breached and that the evidence cannot be saved by s. 24(2) of the Charter.

4For the following reasons, the application is dismissed.

The Search Warrant

5The ITO was submitted on 15 July 2017 using the telewarrant procedure authorised by the Criminal Code. The basis for the warrant, as set out in the ITO, was the belief that Mr. Raymond was trafficking cocaine and marihuana. The ITO specified that the police had reasonable grounds to believe that controlled substances would be found in the apartment and cars being used by Mr. Raymond. The foundation of this belief, as set out in the ITO, arose from information provided by a confidential informant.

6The disclosed ITO was heavily edited in order to protect the identity of the confidential informant. At the outset of the admissibility hearing, Mr. Brotherstone, for the Crown, conceded that the redacted version of the ITO would fail to overcome the admissibility requirement on review. Accordingly, he indicated the Crown would resort to pursuing “Step Six” of the procedure enunciated in R. v. Garofoli, [1990] 2 S.C.R. 1421, as the means of demonstrating that the warrant could have been authorised by the issuing Justice of the Peace.

The Procedure Followed

7In Garofoli, at p. 43-44, Sopinka J. set out the following framework with respect to ITOs that had been edited:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

8During the course of this hearing, Mr. Cedro, for Mr. Raymond, consented to an ex parte hearing to permit the procedural steps set out in steps 1-4 to be carried out in a frank and expeditious manner. After juxtaposing the unedited and edited ITOs, and hearing submissions from Mr. Brotherstone about the reasons for non-disclosure, I ordered that several of the redactions be removed. Mr. Brotherstone indicated that even with those removals, a Step Six procedure would be required to determine if there had been a Charter breach.

9In R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109, Rouleau J.A. highlighted the need to balance the protection of the identity of the informant with the accused’s right to full answer and defence. It was necessary in the Step Six cases, therefore, to preserve an applicant’s right to mount a sub-facial challenge to the ITO. A judicial summary of the edited material is the mechanism designed to further this goal. In creating the judicial summary, this court must “be satisfied that the summary, together with other information available to the accused, provides the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence”: Crevier, at para. 90. In considering the redacted portions that the applicant cannot see, the trial judge must apportion weight taking into consideration that circumstance.

10In R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, Watt J.A., re-affirming the principles set out in Crevier, made clear that the judicial summary provides only a general description of the edited material rather than any detail. The summary “need only make the accused aware of the nature of the redacted material, not its substance and not its details” but “must be sufficient to allow the accused to mount a challenge to the redacted material by argument or evidence”: Reid, at para. 90.

11The Crown had already created a judicial summary in anticipation of the Step Six argument. In light of the removal of redactions from the originally disclosed ITO, a second judicial summary needed to be created. In addition, I found that the original judicial summary proffered by the Crown, contained generic statements, which in my view, did not afford the applicant sufficient opportunity to properly attack the ITO. I therefore ordered amendments to the summary which explained what was underneath the maintained redactions in more detail without jeopardising the identity of the confidential informant. Both the newly edited ITO and judicial summary were provided to Mr. Cedro so that the Charter challenge could proceed.

Could the Warrant Have Issued?

The Test for Reviewing a Judicially Authorised Warrant

12A challenged ITO is presumed to be valid with the onus of establishing its invalidity in a Charter application resting upon the challenging party: R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376, at para. 83.

13Review of a judicially authorised warrant does not involve a fresh hearing where the reviewing judge substitutes his or her view for that of the authorising judge. The review consists of the evaluation of the record which was before the authorising judge in order to determine whether it disclosed sufficient evidence upon which the judge could have issued the authorisation: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99. Any facts that the affiant knew or ought to have known were inaccurate must be excised from the ITO and cannot be considered: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 119-121.

14In order to persuade an issuing justice to authorise a warrant, the ITO upon which it is founded, must set out reasonable and probable grounds to believe an offence has been committed and that evidence relating to that offence will be found at the place to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 18. The party challenging the warrant must establish that there was no basis upon which the authorising judge could have issued the warrant in order for it to be invalid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8. When deciding the issue, the reviewing judge must look at the totality of circumstances set out in the ITO to determine whether the police had made out reasonable and probable grounds that evidence of drug trafficking would be found in the applicant’s home and motor vehicles: R. v. Choi, 2013 ONSC 291, [2013] O.J. No. 3587, at para. 37.

15Was there a Sufficient Connection between Mr. Raymond and the Place to be Searched?

16Mr. Cedro’s initial line of attack on the warrant focused on the lack of any meaningful link between Mr. Raymond and the property to be searched namely the residence of 18 Holmes Avenue Unit 606. This was not surprising given the redacted ITO that was originally furnished by the Crown. However, once the re-edited version of the ITO was provided, it became clear that the confidential informant had indeed told the police that Mr. Raymond lived in the area of the Yonge Street and Finch Avenue intersection. It was also clear that the police had information that Mr. Raymond had provided the 18 Holmes Avenue address on one occasion during his previous arrests but omitted to give an apartment number.

17Surveillance conducted by the police on 18 Holmes Avenue located the Audi, known to be driven by Mr. Raymond because of two prior traffic incidents, in the parking lot of the building. Moreover, the black BMW was registered to Shauna Brown, who resided at the same address provided to the police by Mr. Raymond on a prior occasion. Mr. Raymond also gave Ms. Brown’s name as a person to be contacted as next of kin.

18After speaking to security staff at the building, the police found that visitor parking permits had been issued in respect of the BMW on 9 July 2014 and 13 July 2014. Those permits were authorised to Unit 606. This information, coupled with other material which remains redacted satisfies me that there was a sufficient link between Mr. Raymond and Unit 606 18 Holmes Avenue.

The Debot Criteria

19Mr. Cedro’s second line of attack centred on the reliance of the confidential informant as the basis for the warrant.

20It is not disputed that in this case the confidential informant’s information was crucial in obtaining the warrant. Mr. Cedro argues, however, that the informant did not satisfy the test laid out by the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140. There the court made clear that a confidential informant’s information will not be excised from an ITO only if it shown that the tip was compelling, credible and corroborated as expressed by Wilson J., at para. 53:

21In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

Was the Tip Compelling?

22Mr. Cedro submits that in order to be compelling the tip must be detailed and recent. From the information in the ITO, I am able to ascertain the tip was sufficiently recent to be relied upon by the police. As was made clear the confidential informant informed the police that Mr. Raymond was an “active” drug dealer always in possession of cocaine. Moreover, the tip contained information gleaned from firsthand knowledge which included specific details of the types of drugs, locations and quantities in the possession of the applicant. I find the tip to be very compelling.

Was the Source Credible?

23The ITO contained numerous pieces of information regarding the source’s credibility. The affiant made clear that the informant was being paid for the information provided to the police. However, the ITO also described how the informant had previously provided information to the police that had resulted in the seizure of firearms and a number of people being charged as a consequence. The prior information provided by the confidential informant had been found to be accurate and credible. Although Mr. Cedro questions whether convictions occurred following these arrests, the result of legal proceedings is irrelevant when considering credibility: R. v. Nguyen, 2015 ONCA 753, [2015] O.J. No. 5786, at para. 12.

24The issue of whether or not the confidential informant had a criminal record was also disclosed to the issuing Justice of the Peace. Without going into details, I find that this information did not detract from the source’s credibility.

25Accordingly, I find that the source to be credible.

Was the Information Corroborated?

26Mr. Cedro argues that there was no corroboration of the information provided by the confidential informant. I disagree.

27Corroboration, in this sense, requires confirmation that gives comfort that the confidential informant is telling the truth in relevant aspects of the information provided: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15; R. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 42-43; R. v. Caissey, 2007 ABCA 380, 422 A.R. 208, at para. 23, affirmed, 2008 SCC 65, [2008] 3 S.C.R. 451.

28Here there was some corroboration of the evidence given by the confidential informant in respect of the Audi used by Mr. Raymond. The ITO details previous traffic incidents in which Mr. Raymond was driving both cars. At para. 1i, the ITO discloses the results of checks on the police Versidex system which showed four police interactions with Mr. Raymond. On 5 December 2013, Mr. Raymond was driving the Audi and involved in an accident where he failed to remain at the scene. On 18 February 2014, Mr. Raymond was stopped driving the Audi and charged with two driving offences.

29Moreover, the informant’s information that Mr. Raymond trafficked in drugs was corroborated, in part, by the police check on his criminal record which showed arrests for various drug offences dating back to 2007.

30Although the corroboration in this case is limited, it is not entirely absent. Taking all three components together, I find that the Debot criteria was satisfied and that information provided by the informer should not be excised and available for use in the review process.

Conclusion

31The task of the reviewing judge in the Garofoli process is to decide whether the authorising justice could have been satisfied that there were reasonable and probable grounds that an offence had been committed and that evidence of that offence - in this case controlled substances - would be found in the applicant’s motor vehicles and his home address of Unit 606 18 Holmes Avenue in Toronto.

32As I have already stated, the tip in this case sufficiently complied with the Debot criteria. In seeking the warrant, the police had reliable information that Mr. Raymond was trafficking drugs and using two vehicles to conduct his criminal activities. They knew where he lived and had reasonable grounds to believe that drugs may have been stored in his residence and vehicles.

33Accordingly, I conclude that there was sufficient basis for the warrant to be issued and there was no breach of Mr. Raymond’s s. 8 rights. Accordingly, the application is dismissed.

S.A.Q. Akhtar J.