Court File and Parties

COURT FILE NO.: CR-17-90000495 DATE: 20181026 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SAMUEL KEBEDE

Counsel: Stephen Oakey and Arielle Elbaz, for the Crown Angela Ruffo and Michael Strathman, for Mr. Kebede

HEARD: October 11 and 12, 2018

R.F. GOLDSTEIN J.

Reasons for Judgment on Garofoli Application

[1] On March 3, 2016 Toronto Police executed a warrant at 40 Gordonridge Place, Unit 1422. The police were acting on tips from three confidential informants. The police observed Mr. Kebede on the balcony. He was throwing items from it. The items landed in the parking lot below. The police recovered the items. The items were packages containing drugs. The drugs totalled 20.48 grams of heroin (in two packages), 9.34 grams of powder cocaine, and 10.45 grams of crack cocaine. The police arrested Mr. Kebede. He had $1420 in his pocket.

[2] Mr. Kebede faces trial in this Court on three counts of possession of a schedule 1 drug for the purposes of trafficking and one count of the possession of proceeds of crime. He sought on a motion before me to have the drug evidence excluded. He said that the police violated his s. 8 Charter rights. If the drugs had been excluded from evidence then the Crown’s case would, obviously, collapse.

[3] Mr. Kebede’s counsel, Ms. Ruffo, argued that the warrant was invalid due to material misrepresentations in the information to obtain the search warrant (which I will refer to as “the ITO”). She also argued that the informant information was not sufficient to give rise to reasonable grounds.

[4] I respectfully disagree. It is true that there were two misrepresentations in the ITO. These misrepresentations did not undermine the grounds upon which the justice of the peace could have issued the warrant. I also find that the information provided by the three informants was sufficiently credible, corroborated, and compelling to give rise to reasonable and probable grounds. On October 12, 2018 I dismissed the application with reasons to follow. The following are my reasons.

Background

[5] In February 2018, three confidential informants supplied the Toronto Police with information about Mr. Kebede. The informants indicated that a man named SOSA was involved with the illegal drug trade and in possession of a firearm. Two of the informants were official Toronto Police Service “carded” informants. All three, according to the ITO, had proven reliable in the past. Each confidential informant was cautioned about the importance of being truthful. Each confidential informant was also told that he or she could be charged if they provided police with misleading information. Each confidential informant has a criminal history. The details of the criminal histories were vetted from the ITO.

[6] The affiant of the ITO was Police Constable Askin of the Toronto Police. He stated in the ITO that he had reasonable and probable grounds to believe that Mr. Kebede kept a firearm at 40 Gordonridge Place #1422. He conducted database checks. He learned that Mr. Kebede’s alias was SOSA. He determined that Mr. Kebede faced charges from 2016 of forcible entry, extortion, assault, assault with a weapon, and uttering threats. His co-accused in that case was Mehdi OMAR. The two of them were alleged to have conducted a home invasion, demanded money, and threatened to kill a female victim with a knife. Mr. Kebede was on a recognizance with curfew condition of 8 pm to 6 am. His recognizance also had a condition that he was not to have contact with OMAR. Mr. Kebede also faced a charge of assaulting a police officer from 2015.

[7] The first confidential informant (who I will refer to as CI No. 1) told the police that he attended 40 Gordonridge Place #1422 to purchase drugs. CI No. 1 described going to the kitchen where a man named SOSA used a digital scale and weighed out the drugs.

[8] The second confidential informant (CI No. 2) also described purchasing drugs from SOSA at 40 Gordonridge Place #1422. CI No. 2 also described going to the kitchen of the apartment. CI No. 2 indicated that SOSA had a handgun. The judicial summary sets out that CI No. 2 has been purchasing drugs from SOSA and the fact that there are details describing his observations of the handgun. CI No. 2 told the police that the apartment belonged to a male known as “Billy”. SOSA supplies Billy with heroin in exchange for the use of the apartment.

[9] The third confidential informant (CI No. 3) also attended 40 Gordonridge Place #1422 to purchase drugs. CI No. 3 also described going to the kitchen of the apartment. CI No. 3 indicated that SOSA had a handgun. CI No. 3 also told the police “Billy” is the tenant of the apartment; SOSA supplies Billy with heroin. In exchange SOSA and his friend OMAR use the apartment to deal crack cocaine and heroin.

[10] All three CI’s were shown pictures of Mr. Kebebe and Mr. Omar. All three positively identified both of them. Detective Constable Askin concluded that SOSA is Mr. Kebede.

Procedure

[11] The matter proceeded as what is commonly referred to as a “Garofoli Step 6”: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Crevier, 2015 ONCA 619. Crown and defence counsel were well prepared and therefore dealt with the Step 6 procedure in a very efficient manner.

[12] Crown counsel, Mr. Oakey, provided a vetted copy of the ITO to the defence. Crown counsel conceded that the vetted ITO did not disclose reasonable and probable grounds. In court, I was provided with a draft judicial summary of the edits. I was also provided with an original unsealed copy of the ITO. I reviewed the draft judicial summary and original ITO. I had questions about some of the edits. In an ex parte session, I questioned Mr. Oakey about them. He provided answers. He agreed that some of the edits were not required to protect the identity of the confidential informants. Crown counsel then provided a re-vetted ITO (with more information disclosed) to Ms. Ruffo, Mr. Kebede’s counsel. Crown counsel also provided an updated judicial summary. Ms. Ruffo accepted that she was in a position to make full answer and defence. She then made submissions on the validity of the warrant, as did Mr. Oakey.

[13] Detective Constable Askin was cross-examined at the preliminary inquiry. Ms. Ruffo did not seek to further cross-examine him on the review before me.

[14] Crown and defence counsel agreed as a matter of amplification that Mr. Kebede was on a recognizance at the time the warrant executed at Gordonridge. He was required to reside at as 50 Dearham Wood, in Toronto. He had a curfew of 8 pm to 6 am. Counsel agreed that this fact was omitted from the ITO and could considered by me on the review.

Issues and Analysis

[15] Ms. Ruffo argued that the ITO was misleading because it contained material misrepresentations. She also argued that the information provided by the three confidential informants was insufficient to support the issuance of the warrant. She further argued that the process by which the warrant was obtained was so subversive of the process of judicial pre-authorization that the warrant should be set aside.

Were there material misrepresentations in the ITO?

[16] Detective Constable Askin made the following statement in the ITO:

Through information received from the Confidential Sources, police reports, and police surveillance, it was confirmed that KEBEDE resides at the address including 40 Gordonridge Place #1422, Toronto, Ontario. As a result I am applying to search the residences mentioned for evidence relating to the offence of unauthorized possession of a firearm.

[17] Ms. Ruffo argued that this statement contained two material misrepresentations. First, the police never confirmed that Mr. Kebede resided at Gordonridge. Indeed, Mr. Kebede was required to reside somewhere else at the time of the alleged offence and Detective Constable Askin knew it. And second, there was no police surveillance confirming that Mr. Kebede resided at Gordonridge.

[18] I agree with Ms. Ruffo that the ITO contained these misrepresentations. I do not agree, however, that they were material.

[19] In his Manual of Criminal Evidence, Justice Watt defines materiality at this way:

§4.0 Materiality is a legal concept that defines the status of the propositions that a party seeks to establish by evidence to the case at large. What matters is whether the fact the party seeks to prove bears any relation to the issues in the case.

[20] As Rothstein J. of the Supreme Court stated in R. v. White, 2011 SCC 13 at para. 44 (and referenced by Justice Watt in his Manual), whether an item of evidence is material to an issue is a matter of logic and human experience.

[21] What is a material misrepresentation? Ms. Ruffo relies on the pre-Garofoli case of R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont.H.C.). In that case, Justice Watt, sitting as a judge of this Court, stated at p. 417:

The essence of the materiality requirement, in other words, is the nexus which the applicant must demonstrate between the facts which were not or wrongly disclosed and the dual requirements of probable cause and investigative necessity.

[22] Whether the misrepresentations were material in this case depended upon their relationship to the issue that the justice of the peace had to decide. The justice of the peace had to decide whether there were reasonable and probable grounds to believe that the offence of possession of a firearm had been committed and whether there were reasonable and probable grounds to believe that evidence of that offence would be found in the place to be searched. Those are the basic requirements of any search warrant. Whether or not Mr. Kebede resided at Gordonridge had little to do with the real issue: whether or not Mr. Kebede kept a firearm at Gordonridge and dealt drugs out of Gordonridge. The warrant would have issued even if Mr. Kebede’s bail conditions had been clearly and unambiguously set out in a separate paragraph of the ITO.

[23] In other words, would the warrant have issued if the justice of the peace knew the precise terms of the recognizance? In my view, the answer is clearly “yes”.

[24] The test to be applied on an application to exclude evidence is well known. It is set out in the decision of Sopinka J. in R. v. Garofoli, [1990] 2 S.C.R. 1421 at paras. 55-56:

The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:

If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[25] A reviewing court must exclude erroneous information included in the original ITO. A reviewing court may also refer to amplification evidence. Amplification evidence is additional evidence that corrects good faith errors made by the police in preparing the ITO: R. v. Morelli, 2010 SCC 8 at paras. 40-41; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 58-59.

[26] The misrepresentations here were minor. It would have been clear to the justice of the peace that the tenant of the apartment was someone other than Mr. Kebede. It would also have been clear that at least two CI’s told the police that Mr. Kebede (and his associate, OMAR), only used the apartment. They paid the tenant for the use of the apartment with drugs. Evidence that Mr. Kebede was required to reside elsewhere bore no relation to the facts that the police were required to establish. In other words, it was not material.

[27] Ultimately, I am satisfied that the misrepresentation was a good faith drafting error, rather than a malicious one. The review is “not an exercise in examining the conduct of the police with a fine-tooth comb, fastening on their minor errors… to the point where the police conduct is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465 at para. 57.

[28] In that sense, R. v. Barnes, 2015 ONSC 373 relied on by the defence, is distinguishable. In that case, the failure to disclose that the target was required to reside somewhere else clearly was material. That was because the evidence connecting the target to the place to be searched was not fresh: it was 5 ½ months old. The fact that the target resided elsewhere mattered in the context of that case.

[29] And what about the fact that the police had no surveillance reports indicating that Mr. Kebede was at 40 Gordonridge? The statement by the officer was, unfortunately, ambiguous at best and misleading at worst. There were police surveillance reports from Gordonridge that confirmed some aspects of the CI information, but not that Mr. Kebede lived there. When the ITO is read as a whole, however, it is clear that the justice of the peace could not have been misled. The surveillance reports summarized in the body of the ITO were accurate. It was clear from the whole of the ITO that the police evidence was that Mr. Kebede dealt drugs and had a firearm at Gordonridge, not that he resided there. As a result, I find that the misrepresentation was not material. Indeed, I am satisfied that it was another good-faith drafting error.

Was the informant information sufficient to support the warrant?

[30] Ms. Ruffo argued that the information supplied by the three CI’s was insufficient. The information was insufficiently credible and corroborated. She pointed to the fact that the police corroborated very little of the CI information. She also argued that what information was corroborated was not material and was easily verified by anyone, such as the layout of the apartment hallway. There was little to corroborate Mr. Kebede’s presence at Gordonridge, for example. Ms. Ruffo also pointed out that there was little to establish the credibility of the three CI’s. One of the CI’s had no history with the police. She accurately conceded that the info was compelling but argued that it was not compelling enough to make up for deficiencies in corroboration and credibility.

[31] With respect, I must disagree. I find that the CI tips were sufficiently compelling, corroborated, and credible.

[32] The reliability of the information supplied by a CI must be assessed in light of the totality of the circumstances: R. v. Debot, [1989] 2 S.C.R. 1140. The reviewing court must examine what have come to be known as the “three C’s”: first, was the information predicting or describing the crime compelling? Second, was the source of the information credible? And third, was the information corroborated? Strength in one area weakness in one area may make up for weakness in another.

[33] Sopinka J. offered further guidance in this area in Garofoli at para. 68:

I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". 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.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[34] There is no question that the information supplied by the informants is highly compelling. All three informants provided detailed descriptions of the apartment and the manner of the drug dealing. Two of the informants saw the firearm. Two of the informants provided detailed information about the tenant of the apartment. Both of those informants identified him as “Billy”. They both indicated that Mr. Kebede (and OMAR) supplied heroin to Billy in exchange for the use of the apartment. That is a high level of detail.

[35] Much of that information was corroborated. The informants corroborated each other in several respects. Informant information consistent with other informant information is capable of being corroborative. That is especially so where there is no indication that they knew each other. Furthermore, the police were able to corroborate the association between OMAR and Mr. Kebede. They were also able to corroborate that the registered tenant of the Gordonridge apartment was someone named William. No evidence is needed to establish that “Billy” is a nickname for William. Corroboration need not involve the actual criminality, as long as it confirms material details that would not be ordinarily known.

[36] Ms. Ruffo argues, with justification that the credibility of informants is of concern. That is because the motive is unclear from the redacted ITO. I am aware of the motive from my review of the un-redacted ITO. I do not disagree with Ms. Ruffo. There are concerns about the credibility of these informants. All have a criminal history. All were buying drugs. As a general rule, however, the notion that the motive of the confidential informant bears strongly on his or her credibility is simply unrealistic. Informants are usually motivated by money or consideration for charges that they face or to incriminate rival criminals. Informants often criminals themselves. That is how they have information about other criminals. Informants who are motivated by purity of heart are as uncommon as vegetarians in a steakhouse: you can find them, but not very often. Credibility often comes from the amount of reliable information supplied in the past and the entrenchment in the criminal world. Two of the CI’s were “carded” Toronto Police informants.

[37] I agree with Ms. Ruffo that credibility and corroboration are of some concern in the ITO. That said, I am satisfied that the informant information was sufficiently compelling to make up for the weaknesses in corroboration and credibility. It is true that the police could have done more to corroborate the information, such as by surveillance. It must be remembered, however, that this was a warrant to search a place used by a potentially violent drug dealer with a handgun. There is a certain amount of urgency associated with handguns, particularly in Toronto where there has been such a recent plague of shootings. I do not wish to suggest that the legal standards must be relaxed for searches involving guns. At the same time, I think the police must be given some leeway when there is such an obvious threat to public safety. Furthermore, a judge cannot close his or her eyes to what is going on in the real world, and pretend that the courtroom is an island somehow apart from the community. Judges and lawyers do not have the luxury of parsing an ITO with the scrutiny reserved for Talmudic scholars pouring over biblical texts, especially where the object of that ITO is a threat to public safety.

Was the process by which the warrant was obtained so subversive of the system of prior authorization that it constituted a violation of s. 8 of the Charter?

[38] Ms. Ruffo argues that the misrepresentations and problems in the ITO fundamentally undermined the system of prior authorization. A single violation may not have violated s. 8 of the Charter. Cumulatively, they all did. There is, she argues, discretion to set aside an otherwise valid warrant where the process was so subversive of the system.

[39] It is true that a trial court has the authority to do this. As Watt JA stated in R. v. Paryniuk, 2017 ONCA 87 at paras. 66 and 69:

As I will explain, I agree with the appellant that a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority…

What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.

[40] Respectfully, however, I cannot exercise that discretion in this case. The misrepresentations and errors in the ITO were in no way the product of fraud, deliberate non-disclosure, or bad faith. This argument cannot succeed.

Disposition

[41] The application is dismissed. Given the result, there is no need to consider s. 24(2) of the Charter.

R. F. Goldstein J. Released: October 26, 2018