Court File and Parties
COURT FILE NO.: CR-397-17-39 DATE: 20181005 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Rodney Helmer Defendant
Counsel: R. Turgeon, counsel for the Crown P. Giancaterino, counsel for the Defendant
HEARD: August 13th and 14th, 2018
RULING ON THE APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SS. 8 AND 24(2) OF THE CHARTER
Lacelle, J.
INTRODUCTION
[1] The Applicant, Mr. Helmer, is charged with several offences under the Controlled Drugs and Substances Act and Criminal Code following a search of his residence. The search was authorized by a CDSA search warrant. The Applicant applies under ss. 8 and 24(2) of the Charter to quash the search warrant and to exclude from his trial evidence of the drugs and other items seized during the search.
[2] In the Information to Obtain (“the ITO”) prepared for the search warrant the affiant relies on the information supplied by four confidential informants (“CIs”) in support of his grounds to believe that the Applicant was trafficking in cocaine from his residence. The ITO before me has been heavily redacted to protect informer privilege.
[3] The redacted ITO discloses that the informants alleged that the Applicant was selling cocaine which was being supplied to him by Jeffrey Berube, that the Applicant was supplying other named individuals who were selling cocaine, and that the Applicant and Berube were part of a gang called 13 Crew that is affiliated with the Hells Angels. The ITO also describes the observations made by various police officers during six days of surveillance of the Applicant and Berube that was conducted over a number of weeks. The affiant was one of the officers conducting surveillance. He personally observed individuals known to be actively involved in the cocaine trade attending at the Applicant’s residence for short periods of time. He also observed what he believed to be a drug transaction between the Applicant and an unknown male.
[4] Neither party has requested that the court proceed to step six of Garofoli. Consequently the information redacted from the ITO is not available for the court’s consideration in determining the merits of the Applicant’s s. 8 claim.
The positions of the parties
[5] The Applicant argues that the information provided by the informants, as presented in the redacted ITO, is insufficiently reliable to be considered in support of the affiant’s grounds. He argues that the ITO should be further modified on review since the affiant omitted relevant information and improperly included misleading or prejudicial information. The Applicant says the authorization to search could not be reasonably granted on the redacted and modified ITO. Since this results in a warrantless search, the Applicant’s s. 8 Charter rights were breached. The only remedy in the circumstances is to exclude the evidence pursuant to s. 24(2).
[6] The Crown disagrees. In the Crown’s view, there is ample information remaining in the redacted ITO to demonstrate the reliability of the informants and to justify the issuance of the search warrant.
The issue to be decided
[7] The issue I have to decide is whether the redacted ITO, as modified following my review, contains sufficient reliable information that might reasonably be believed, in the totality of the circumstances, to support the issuance of the search warrant. In large measure, this turns on whether the information provided by each of the four informants was sufficiently compelling, credible and corroborated to permit the affiant to rely upon that information to establish reasonable and probable grounds to believe the Applicant was selling cocaine from his residence.
THE GOVERNING PRINCIPLES
The review process
[8] A judge conducting a review of the sufficiency of an ITO does not substitute his or her view for that of the justice who issued the warrant. The task of the reviewing judge is to consider whether the record before the issuing justice contains sufficient credible and reliable evidence to permit the issuance of the warrant once the ITO is “trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor or technical errors in drafting the ITO”: see R. v. Mahmood, 2011 ONCA 693 at para. 99; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 40-42; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 54 and 59.
[9] Errors in the information presented to an authorizing justice are factors to be considered in deciding whether the authorization should be set aside. They do not lead to automatic vitiation of the authorization. Trial judges should examine the information in the affidavit independent of the error, misrepresentation or omission to determine whether there is sufficient reliable information to support the authorization: R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421.
[10] Once the record for the review is determined, the reviewing judge must undertake a contextual analysis that examines whether the ITO contains sufficient reliable information (that might reasonably be believed) in the totality of the circumstances to support the issuance of the warrant: Araujo at para. 54.
The duty to be full, frank and fair
[11] An applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in an ITO: Araujo at para. 46; Morelli, at paras. 44, 55 and 58-60. The affiant must also not omit material facts. As indicated in Morelli at para. 58, the affiant must be careful not to ““pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not” [emphasis in original].
Reasonable grounds
[12] In assessing the sufficiency of the ITO, the court must determine whether in the totality of the circumstances it discloses “reasonable grounds” to believe that the offence specified has been committed by the accused. The meaning of “reasonable grounds” was efficiently summarized in R. v. McKenzie, 2016 ONSC 245 at para. 46 as follows:
this standard does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. Instead, this standard is one of credibly-based probability, and requires proof or reasonable probability or reasonable belief. At the same time, it requires more than an experienced-based “hunch” or reasonable suspicion. In other words, if the inference of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the [warrant] could have issued.
Information supplied by a confidential source and the Debot criteria
[13] In considering the value of information supplied by a confidential source in establishing reasonable and probable grounds, the court must be mindful of the criteria set out in R. v. Debot, 1989 SCC 13, [1989] 2 S.C.R. 1140 at para. 53, including whether the information was compelling, whether the source of the information was credible, and whether the information was corroborated by police investigation prior to the determination to search. The factors are not a separate test. The totality of the circumstances must be assessed against the standard of reasonableness. Further, “[w]eaknesses in one area may, to some extent, be compensated by strengths in the other two”.
[14] The Debot criteria apply to searches conducted with or without a warrant: R. v. Hosie, [1996] O.J. No. 2175 (C.A.) at para. 12.
[15] When the police are relying on a tip from an anonymous source or an untried informant, “the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source”: Debot at para. 59. The same will be true where fewer details are provided by the source and the “risk of innocent coincidence is greater”: Debot at para. 63.
[16] With respect to what is required from police corroboration, it is not necessary for police to confirm every detail in an informant’s tip “so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence”: Debot at para. 63.
[17] While I do not reproduce it here in its entirety, I have been assisted by the summary of the factors which may be considered in assessing the Debot criteria set out by Kelly J. in R. v. Farrugia, 2012 ONCJ 830 at paras. 105-110.
ANALYSIS
[18] Given the centrality of the information provided by the informants to the issue in this case, I commence my analysis of the sufficiency of the ITO with consideration of the Debot criteria. As suggested in R. v. Rojas-Machuca, 2018 ONCA 390 at para. 8, I apply the Debot criteria to each informant individually.
The Debot analysis
i) Is the information compelling?
[19] Various factors are relevant to assessing this criterion including whether the information is first-hand knowledge or hearsay from another source, whether the information is widely known or whether it suggests the original source has knowledge of criminal activity alleged, whether the information is specific or in the nature of conclusory allegations, the period of time over which the CI acquired the information, and whether the information is current.
[20] In this instance, the defence says that the information supplied by the informants which remains to be assessed in the vetted ITO is undated, largely unsourced, and so commonplace and devoid of specificity as to have no compelling value.
[21] The Crown points to various consistencies and direct observations in the information from the informants (for instance, all allege the drug being trafficked is cocaine and two make direct observations of this drug at the Applicant’s residence) in support of its position that the information is compelling. The Crown further argues that the differences in the accounts of each CI are illustrative: if the information each CI provided was common knowledge, all four of them could be expected to have provided similar details. The fact that they did not shows that the information was not commonplace.
[22] I agree with the Applicant that some of the information provided by the informants was commonplace. While information about a target’s address and vehicle and a description of his/her physical appearance provides some indication that the informant genuinely knows the target and may contribute to a finding that the information provided by the informant is compelling (see for instance Crevier at paras. 17-18 and 108, R. v. McKenzie, 2016 ONSC 245 at para. 50), depending on the factual context, such easily acquired information about the target of an investigation may be given little weight. In this instance, while I consider all of the information provided by each of the informants in assessing the totality of the quality of the information he/she provided, I give limited weight to information such as where the Applicant lived, what car he drove, what he looked like, and what other persons shared his residence.
[23] In assessing whether the information provided by each informant was compelling, I also consider that while the ITO clearly indicates that some observations were made by an informant first-hand, a great deal of the information provided is unsourced. The court has no way of knowing how the informant acquired the information. Without some indication in the ITO that the informant personally observed what he/she reports, the court cannot justify a conclusion that they are the original source of what is reported: see for instance R. v. Green, 2015 ONCA 579.
[24] However, the vetted ITO indicates that a number of first-hand observations were made by the informants. I find the following:
a. CI#1 reported observing cocaine in the residence of Mr. Berube. The informant provided the address of the residence. It appears that this informant may also have observed cocaine in the Applicant’s residence. However, given the vetting in the ITO, I cannot be sure that this is the case and accordingly I treat this information as unsourced. b. CI#2 reported purchasing cocaine at the Applicant’s residence on three occasions. In each instance, the informant stated the amount he/she paid for the cocaine. In two instances, the informant also reported observing amounts of cocaine in the residence - one of these occasions was said to involve the observation of “a large amount of cocaine”. c. CI#3 reported attending the Applicant’s and said he/she “picked up” cocaine. d. CI#4 reported attending at the residence of Dan Roach and having purchased cocaine for a specified amount. The informant provided the address of the residence.
[25] The precise dates that information was provided by the CIs has been redacted from the ITO. What remains for my consideration is that each informant provided his/her information in the year 2016. Given that the ITO was sworn on June 16th, 2016, I conclude that the information provided by each informant was at most between 6-7 months old. Given the totality of the circumstances including the nature of the offences alleged, the information provided was not so dated as to preclude its reliability. In the context of the allegations here, which suggest an ongoing enterprise, information provided within this period of time may reasonably contribute to the reasonableness of the affiant’s belief.
[26] At a minimum, then, I find that the ITO discloses first-hand information from two informants that they purchased cocaine from the Applicant on four separate occasions at his residence within a 7 month period of the swearing of the ITO. The ITO discloses first-hand information that two informants either purchased or observed cocaine at the residence of two persons alleged to be trafficking cocaine in concert with the Applicant.
[27] The Applicant says this is not compelling information because there are no details provided about where the cocaine was stored in the residence, the date the transaction occurred, and the amount of cocaine involved. Further, as acknowledged by the affiant in the ITO, none of the informants observed tools of the drug trade such as scales and other items. While I am satisfied that information about the amount paid for the cocaine was provided by CI#2 for each of the three occasions this informant purchased drugs from the Applicant, and CI#3 specified what was paid at the residence of Dan Roach, in assessing the totality of the evidence regarding this Debot criterion, I consider that other details emphasized by the Applicant were not provided.
[28] In the result, I find that there was information from each of the CIs that was compelling. It included detail beyond the commonplace. Two of the informants made direct observations of the Applicant engaged in the criminal activity alleged by the affiant. Two other informants directly observed similar activity by Berube and Roach. Given the allegation that both of these individuals were linked to the Applicant and his trafficking activity, these direct observations made the case that the Applicant was involved in this activity in concert with them more compelling. While the precise dates of the observations have been redacted to give effect to informer privilege, I am satisfied that even without this information, and other details highlighted by the Applicant, the information provided remains compelling.
[29] Before leaving this Debot factor, I note that each informant provided information which was left unsourced in the ITO. The value of this information may be limited unless it is corroborated and I will address the extent to which corroboration exists later in my reasons. But with reference to this Debot factor, I find that each informant provided additional information that was beyond the commonplace and amounted to more than bald conclusory statements. For instance:
a. CI#1 alleged that: i. Mr. Berube had picked up cocaine from an unknown individual in Ottawa; ii. Mr. Berube was a member of the 13 Crew Motorcycle gang which is affiliated with the Hells Angels; iii. Mr. Berube supplied cocaine to the Applicant and dropped it off to him; iv. The Applicant supplied a male named Dan Legue; v. Legue will attend the Applicant’s residence to pick up cocaine; vi. Berube was on his way back from Ottawa having just picked up cocaine, that he was driving his black Chrysler 300, and he will be going to the Applicant’s or his own residence with the cocaine; vii. Berube just dropped off cocaine at the Applicant’s residence. b. CI#2 alleged that: i. The Applicant and Berube belonged to a motorcycle gang called the 13 Crew; ii. Berube stores cocaine at his residence; iii. Berube supplies cocaine to the Applicant who sells out of his residence; iv. The Applicant supplies Dan Roach; v. A certain individual (whose name has been vetted) works for a male named Corey Greenwood who is a member of the Hells Angels. c. CI#3 alleged that: i. A man named Dan Legue is selling cocaine and the Applicant supplies him; ii. Legue attends the Applicant’s house to pick up cocaine; iii. The Applicant and Legue are part of a biker club called the 13 Crew and are associated to the Hells Angels; iv. Legue will be attending the Applicant’s residence to pick up cocaine on a certain date. d. CI#4 alleged that: i. The Applicant is supplying Dan Roach with cocaine.
ii) Are the sources credible?
[30] The Applicant highlights the direction in R. v. Crevier from our Court of Appeal that the ITO “must include details about the confidential informer’s reliability and what makes the tip compelling to satisfy the Debot factors”. This includes an obligation to include details unfavourable to the informer: see Crevier at para. 68.
[31] The Applicant argues that the redacted ITO does not permit a conclusion by this court that the sources in this case were credible. This is largely because details pertaining to the reliability of the information they have provided in the past have been redacted and it is now impossible to assess just how reliable they are. Further, the ITO contains no indication of details such as the number of instances when the information provided by each source has been incorrect or the number of times they have been reliable. There is no information about the nature of their criminal records. There is no information about whether they are known to one another.
[32] The Crown concedes that the information highlighted by the defence is not available in the redacted ITO. However, the Crown says that the information that is available provides confirmation that the CIs in this case are sufficiently credible and reliable and that their information was properly considered as a basis for the officer’s reasonable and probable grounds to believe the Applicant was trafficking in cocaine from his residence.
[33] No challenge is taken to the affiant’s assertion that he maintains contact on a regular basis with confidential informants who provide him with information pertaining to the local drug subculture, or that each of the four CIs in this case provided him with his/her information directly. There is therefore evidence that the affiant had personal knowledge of the CIs: see Debot at para. 52.
[34] The specifics of how each informant has been tested have been largely redacted from the ITO. What remains allows me to make the following findings in respect of each informant:
i. CI#1 has been known to the affiant for a period longer than a year. The informant’s information has led to the execution of more than one search warrant. Information provided by this informant is being used by police as intelligence. ii. CI#2 has been known to the affiant for a period longer than a year. The informant’s information has led to more than one search warrant being executed as well as several warrantless arrests for drug and Excise Act related offences. Information provided by this informant is being used by police as intelligence. iii. CI#3 has been known to the affiant for a period of less than two years, and by inference, likely one year. The informant has provided information that led to more than one search warrant being executed. The informant’s information is being used by police as intelligence. iv. CI#4 has been known to the affiant for a period longer than a year. The informant’s information has led to more than one search warrant being executed as well as several warrantless arrests for drug and Excise Act related offences. Information provided by this informant is being used by police as intelligence.
[35] I agree with the Applicant that I cannot determine from the vetted ITO whether the informants are known to each other, how they acquired their unsourced information, whether they have been told there are consequences to providing false information, and whether they were motivated by anything other than money to provide their information.
[36] In considering this Debot criterion, I note that information leading to arrests has been relied upon as a marker that the informant has provided credible and reliable information in the past: see R. v. Nguyen, 2015 ONCA 753 at para. 11. As noted in Nguyen at para. 12, “an arrest and seizure of drugs may not result in a conviction for any number of reasons unrelated to the reliability of the informant”.
[37] With respect to the criminal record for each informant, the ITO indicates that the entirety of any record, if any, was provided to the justice of the peace. That information has not been included in the vetted ITO, nor is there a description of the record confirming whether it includes convictions for offences of dishonesty or against the administration of justice. Given these circumstances, I cannot rule out the possibility that evidence of these types of convictions for each of the informants was before the justice of the peace and I consider that in assessing the evidence as to the credibility of the sources here.
[38] I also consider that each informant is said to be motivated by financial compensation and that there is no evidence that any of the informants was advised of any repercussions for providing false information.
[39] R. v. Lewis, [1998] O.J. No. 376 (C.A.) directs at paras. 18-19 that a court must be cautious about information from anonymous or untested sources and the risk of false allegations: “[a]bsent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search”. While it is clear that the information in the redacted ITO is not as robust as the evidence adduced in many other cases, it far exceeds the level of an anonymous or untested source.
[40] On the information remaining for my review, I conclude that each source has been tested by police over a reasonable period of time and that information provided by each has previously had value to police in advancing investigations to the point of search warrants, arrests for drug related offences (in the case of CI#2 and CI#4), and as intelligence. While there are significant deficiencies in the information provided, including whether there have been instances when each informant has not been reliable, I conclude that there is at least a prima facie basis to find each source is credible.
iii) Was the information corroborated?
[41] As I have said, the decision of Kelly J. in Farrugia provides a useful summary of the issues which are relevant to this criterion. As he suggests,
Questions relevant to this branch of the analysis include the following:
- Have the police verified only commonplace details or innocent conduct of which almost anyone could be aware, or have they acquired information that tends to confirm behaviour with enough distinctive features to remove it from the realm of the ordinary or everyday?
- Does the information gathered by the police conform sufficiently to what one would have anticipated based on the CI’s information, such that the possibility of coincidence, mistake, or falsehood is reduced to a degree that is tolerable in the context of the reasonable grounds standard?
[42] The Applicant argues that the information provided to the police by each of the informants was so generic and commonplace as to have no value in confirming the allegation that the Applicant was involved in selling cocaine from his residence. For instance, the Applicant’s address, his physical description, the car he drove, and the fact that he had a spouse who lived with him were all pieces of information that were of little value. I consider that while the police did corroborate this type of information with their surveillance and through police databases, this type of corroboration is of limited value (see for instance Farrugia at para. 111, R. v. McKenzie, 2016 ONSC 245 at paras. 56-7).
[43] However, I find that the police observations made during surveillance of the Applicant did reduce the possibility of coincidence, mistake, or falsehood in the information provided by the informants. The police surveillance corroborated aspects of both the sourced and unsourced information from the informants. The police surveillance included the following:
a. Observations by the affiant and others of the Applicant and Berube tending to confirm their affiliation with the motorcycle club 13 Crew; b. Observations of an individual wearing a “support Hell’s Angels sweater” exiting and entering the Applicant’s residence; c. Observations of Corey Greenwood, who is known by police to be a member of the Hell’s Angels and involved in a “high level of cocaine trafficking”, attending at the Applicant’s residence wearing a Hell’s Angels vest; d. Observations of Berube driving a Chrysler 300, including in Casselman, Ontario, and police checks confirming Berube is the owner of that vehicle; e. Observations of the Applicant and Berube at each other’s residences on multiple occasions; f. Observations of Dan Legue, who is known to the affiant as being actively involved in the cocaine trade and known to police to be part of the 13 Crew Motorcycle Club, at the Applicant’s residence on two occasions for short durations; g. Observations of Dan Roach, who is known to the affiant as being actively involved in the cocaine trade, at the Applicant’s residence on one occasion for a short duration; h. Observations of a male believed to be Steve Campbell, an individual known to the affiant to be involved in the cocaine trade, at the Applicant’s residence for 31 minutes; i. Observations of a vehicle at the Applicant’s residence which was known to be driven by Chris Dupuis, a person known by police to have recent CDSA charges (the ITO indicates that a report on a police databank with respect to this arrest documents the use of this vehicle by Chris Dupuis); j. Observations by the affiant of the Applicant carrying a small box, meeting with an unknown male outside his residence, and returning to his residence empty handed; k. Observations by another officer of the Applicant making a “hand to hand transaction” with a female outside his residence.
[44] I am particularly persuaded of the corroborative value of the observations involving Legue, Roach, Campbell and Dupuis, and the observations of the Applicant with the small box and making a hand to hand transaction. On the whole, I find that police corroborated the information from the confidential informants to a substantial degree. To use the language from Debot, I find that “the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence”: see para. 63.
[45] Further, I consider that there is no legal requirement that police confirm the very criminality described: McKenzie at para. 57, Farrugia at para. 118. While no surveillance or other police observations directly confirm the criminal activity alleged, corroboration is found in the repetition of the information from at least two of the informants who allege they purchased or picked up cocaine at the Applicant’s residence. While I am mindful of the deficiencies in the information available to me regarding the credibility of the informants, I find that the similar information provided by the informants of their participation in the criminal activity has corroborative value nevertheless. Crevier confirms that information from one informant may properly be considered corroborative of information obtained from another: see paras 38 and 107.
[46] In arriving at this conclusion, I am not relying on the affiant’s assertion at p. 18 ll. 658-662 of the ITO that certain information was corroborated between CI#1 and CI#2. Regardless of the specific links the affiant was suggesting, the information which remains in the vetted ITO permits the conclusion that the information that the Applicant was selling or supplying cocaine from his residence came from at least two informants (CI#2 and CI#3). Those two accounts are what I consider to be corroborative.
Other deficiencies alleged in the ITO
[47] The Applicant argues that other issues with the affiant’s drafting of the ITO further weaken its sufficiency to support a search warrant. I address those arguments in turn.
Misleading or prejudicial information
[48] The Applicant argues that the ITO contained misleading and prejudicial information that ought to be excised.
The “hand to hand” transaction
[49] I agree that the viva voce evidence on the voir dire demonstrates that the observations of D/Cst. Langlois on June 13th, 2016 do not support the characterization made by the affiant of those observations as a “hand to hand transaction”. As I understand his evidence, while he observed the Applicant carrying a long red item and putting it in the back of a Jeep with New York plates, and he also saw the Applicant giving the driver of that vehicle smaller items, there was no exchange. The officer did not use the term “hand to hand” transaction to describe what he saw, while this is how it is characterized in the ITO.
[50] The Applicant says this reduces the force of the ITO insofar as it reduces the number of “hand to hand” transactions that were observed during the surveillance of the Applicant. While I am prepared to excise the reference to D/Cst. Langlois’s observations of this transaction on June 13th, 2016, I also consider that the affiant cites only his own observation of a transaction between the Applicant and an unknown male in his grounds to believe that things are in the “place to be searched”. I also consider that D/Cst. Langlois confirmed in his evidence that he also observed the Applicant in a hand to hand transaction with a female standing near his residence as set out by the affiant in the ITO.
The observations relating to unknown items
[51] The Applicant also argues that insufficient care was taken by police in describing certain items they observed during their surveillance. The ITO refers to one occasion where the Applicant is observed exiting his residence carrying an “unknown item” and another occasion when an unknown male takes an item from the Applicant’s vehicle. The Applicant does not say that this information was mischaracterized by the affiant in writing the ITO but rather suggests it is information that ought not to have been included because it leaves the misleading impression that these observations are related to drug trafficking.
[52] I do not agree. I accept that police would be unable in the context of conducting surveillance to make complete observations of items some distance away. I accept the evidence of D/Cst Langlois that he was unable to determine what the items were. I do not view the inclusion of this information as a breach of the affiant’s duty to be full, frank and fair. There is no reason to find that the limited value of this observation would not have been understood by the issuing justice given the way it was presented in the ITO.
The reference to the Applicant’s criminal record
[53] The ITO includes a description of the Applicant’s dated criminal record from 1996 for possession of property obtained by crime. The affiant characterizes it as a “relevant conviction”. The Applicant relies on R. v MacDonald, [2005] O.J. No. 551 (S.C.J.) and argues that this information was prejudicial and improperly included in the ITO. The Crown argues that this type of conviction is related to drug trafficking and that the characterization was not made in bad faith. The Crown suggests the record was included for completeness and emphasizes that affiants are not trained lawyers and the quality of their drafting must not be assessed against that standard.
[54] Even if a conviction for possession of stolen property is relevant to an allegation of trafficking in cocaine, I find the dated quality of the conviction in this case rendered it of no value in assessing the sufficiency of the affiant’s grounds. Given its irrelevance, on one view, the inclusion of this conviction shows that the Applicant has no prior link to the type of criminal conduct at issue in this case. However, given the affiant’s characterization of the conviction as “relevant”, it appears the affiant did not share that view.
[55] All the same, given the nature of the record here and the unlikely conclusion to be drawn from it that the accused is a bad person or a person with criminal tendencies (as opposed to R. v MacDonald, [2005] O.J. No. 551 (S.C.J.) where a criminal record for sexual offences was included in an ITO alleging the target had a grow operation and a gun in his house), I see little scope for this information to have had any meaningfully prejudicial impact. While I doubt that the issuing justice would have been misled or prejudiced by the inclusion of this information, I excise it from the ITO for the purposes of my review.
The reference to the difficulty in conducting surveillance
[56] The Applicant points out the affiant’s comments about the difficulty of conducting surveillance at the Applicant’s residence. Given that the police clearly had done extensive surveillance at this residence at the time the ITO was drafted, the Applicant says this statement was incorrect and had the potential to mislead the issuing justice. The Crown says the statement was not misleading because it was difficult to do surveillance.
[57] I agree that these comments are curious in the context of an ITO which sets out an extensive description of surveillance done by police in the vicinity of the Applicant’s residence and it is not clear to me why they were included. However, I do not find that this curiosity in the ITO advances any issue of substance on this application. Investigative necessity was not an issue to be considered in determining whether sufficient information supported the officer’s grounds. I do not see how this information could have misled the issuing justice, particularly given the description of the actual surveillance that was, in fact, done. Regardless, in order to give the Applicant’s argument its fullest effect, I am prepared to excise this reference for the purposes of my review.
The conclusion that drug dealers are “suspicious of people coming to their door”
[58] The Applicant argues that the affiant’s statement in the ITO’s conclusion that he knows drug dealers to be extremely cautious and suspicious of people coming to and from their door is contradicted by the description of activity at the Applicant’s residence observed during surveillance. To the extent that this is true, I find that the issuing justice was in a position to fairly assess this statement regarding the affiant’s experience and opinion. I also consider the context for this statement, which was made to explain why the affiant was planning to execute the warrant without prior announcement having regard to the need to afford the best opportunity to seize evidence and ensure there was no opportunity for the occupants of the residence to arm themselves.
[59] Given this context, the statement is not necessarily contradicted by the observations made during the surveillance and I am not satisfied that it should be excised. In any case, it related to the manner of the warrant’s execution and has no bearing on the affiant’s grounds. To the extent that the affiant’s prior experience with drug dealers was undermined by the observations of the Applicant’s residence, the issuing justice was in a position to fairly assess the impact of that contradiction. Given the totality of the evidence, I find it could not have impacted on the justice’s assessment of the sufficiency of the grounds for the warrant.
The omission of relevant information
Innocent activity at the residence
[60] Evidence on the voir dire indicates that at least two officers made observations of entirely innocent activity in the vicinity of the Applicant’s residence and that of the second target, Berube. Sgt. Levere testified that there was activity at both locations that involved multiple people attending the residence to work on motorcycles and cars. D/Cst. Langlois agreed that people would come and go frequently. The Applicant says that this information was improperly omitted. Had it been included, a different interpretation of the activity observed at the Applicant’s residence would have been available to the issuing justice. He argues that it was important to place this information before the issuing justice so that he/she could place the observations of other unknown individuals attending the residence in context.
[61] While I am prepared to add this information to the ITO for the purposes of my review, I do not agree that the inclusion of the additional observations of Sgt. Levere or D/Cst. Langlois dilutes the observations set out in the ITO to such an extent that given the totality of the evidence the warrant could not have issued. Common sense dictates that people involved in drug trafficking activities do more in their daily lives than traffic in drugs. Whatever innocent activity occurred outside the residence, the observations of persons named by the informants and known to police as cocaine dealers in the Applicant’s residence for short durations are not substantially weakened by this additional information.
Other issues: police conduct
The discrepancy in the scribe notes and the ITO
[62] The Applicant relies on the evidence heard during the voir dire regarding the discrepancy in PC Kelly’s notes regarding who was designated as the first target (“T1”) or second (“T2”). PC Kelly testified that he had reversed the references to the actual individual observed at various points in his notes. This error had become clear during the evidence of D/Cst Langlois which preceded that of PC Kelly.
[63] It is not clear on all the evidence how those errors in PC Kelly’s scribe notes, which were used by the affiant in the preparation of the ITO, did not also make their way to the ITO. The Applicant says that this correction in the ITO without some discussion amongst the officers is impossible and the way this information was provided to the issuing justice (which describes the actual observations made) should cause this court concern given the additional evidence that has been adduced.
[64] I do not agree that this discrepancy in the scribe notes and the ITO is capable of undermining the issuance of the warrant. The voir dire evidence makes clear that regardless of how the observations were recorded in the scribe notes, the observations in the ITO were made as indicated in that document. The court has limited evidence as to how the ITO was prepared. While I agree that PC Kelly should have alerted the Crown to this error in his notes as soon as he discovered it rather than waiting until he testified to clarify his error, there is no basis to find that there has been nefarious conduct on the part of police such that the basis for issuing the warrant is undermined.
Conclusion on the Garofoli review
[65] I find that the totality of the information contained in the redacted ITO (as further modified on review) is sufficiently reliable to support a reasonable belief that the Applicant was selling cocaine from his residence.
[66] The record before me could be more robust with respect to the credibility of each of the informants. But the weaknesses in this Debot factor are compensated by the strengths in the other two. Two informants made observations of the Applicant selling or supplying cocaine from his residence. Collectively, the informants tied the Applicant to other individuals known to police to be involved in the cocaine trade. Police surveillance was able to corroborate the Applicant’s ties to those individuals and activity consistent with drug trafficking. The information of the informants, considered alongside the observations of police during their surveillance, supported the affiant’s statement that he had reasonable and probable grounds to believe that the Applicant was selling cocaine at his residence, that he was committing offences contrary to s. 4(1) and 5(2) of the CDSA, and that evidence would be found at the Applicant’s residence at the specified time.
[67] I conclude that the warrant was validly issued.
[68] Given this conclusion and the validity of the search warrant, there is no breach of the Applicant’s s. 8 Charter rights. Accordingly, his application is dismissed.