COURT FILE NO.: 18-90000210-0000 DATE: 20181123

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – YOLANDA MEECHAM Applicant

COUNSEL: G. Roy and S. Egan, for the Respondent W. G. Orr, Q.C., for Applicant

HEARD: November 19-22, 2018.

RULING ON CHARTER APPLICATION

SCHRECK J.:

[1] Yolanda Meecham is charged with possessing various controlled substances for the purpose of trafficking. The charges are based on items seized during the execution of a search warrant on June 4, 2016 at condominium unit 2001 in a building at 2212 Lakeshore Boulevard West in Toronto. Ms. Meecham has brought an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to have that evidence excluded. She takes the position that the Information to Obtain the warrant (“ITO”), as amplified on review, does not set out the requisite grounds necessary to justify its issuance. She submits that the resulting search therefore violated her s. 8 Charter rights and that the evidence should be excluded pursuant to s. 24(2).

[2] For the reasons that follow, the application is dismissed. Because of time constraints, these reasons are brief and do not set out all of the relevant facts or applicable law in great detail. I reserve the right, if necessary, to supplement these reasons at a later date.

I. THE HEARING OF THE APPLICATION

A. The “Step Six” Procedure

[3] The ITO relates to several properties, only one of which is relevant here. The applicant and another individual, Richard Brewster, are identified in the ITO as targets of the investigation. It was the police theory that Brewster was a large scale drug trafficker who used the applicant to traffic drugs for him and that the drugs were stored in several locations, including the condominium unit.

[4] The ITO contains information from three confidential informants. Some of that information has been redacted to protect the identities of those informants, so the six-step procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421 was followed. The Crown concedes that the redacted version of the ITO does not set out sufficient grounds to justify the issuance of the warrant. As a result, the Crown brought what is commonly referred to as a “step six” application, named for the sixth step in the procedure set out in Garofoli, which was described in that judgment as follows (at p. 1461):

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.

[5] Initially, the defence was provided with a heavily redacted version of the ITO, together with a proposed judicial summary prepared by the Crown summarizing the contents of the redacted portions. In accordance with the second and third step of the Garofoli procedure, I heard submissions from both counsel with respect to the necessity for the redactions and the adequacy of the judicial summary. In the result, some of the redactions were removed and defence counsel was provided with additional information. I concluded that with that additional information, the applicant was “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 83-84.

B. Cross-Examination of the Affiant

[6] Counsel for the applicant sought and was granted permission to cross-examine the affiant in relation to certain specified issues. As well, the Crown concedes that some portions of the ITO should be excised as they are inaccurate.

II. ANALYSIS

A. Overview of Applicable Legal Principles

[7] In reviewing the search warrant in this case, there are certain legal principles I must bear in mind. The first is that the warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established in the ITO: Crevier, at para. 66. That standard is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168. “Reasonable and probable grounds” means a “credibly based probability” and does not mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-128; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166.

[8] In reviewing the ITO for sufficiency, I must take a “common-sense and holistic approach”: R. v. Herta, 2018 ONCA 927, at para. 21. I must keep in mind that I am not to substitute my view for that of the issuing justice. My task is to determine whether, based on the record that was before the issuing justice as amplified by the evidence adduced at the hearing of the application, the issuing justice could have issued the warrant. If I conclude that he or she could have, then I am not to interfere, even if I would have come to a different conclusion had I been the authorizing judge: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51.

[9] As noted earlier, in this case the “step six” procedure was followed and counsel for the applicant did not see all of the redacted portions of the ITO. In considering this application, I recognize that this procedure can never be a full substitute for submissions by counsel who is fully apprised of all of the relevant information. However, the final determination as to the validity of the warrant is made by an impartial arbiter who is privy to all of the information.

[10] Furthermore, as observed in Crevier, the fact that counsel’s ability to challenge the ITO is compromised will be taken into account when assessing the ITO (at para. 88):

Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant’s issuance. The judge will consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions. The exercise here is somewhat akin to the admission of testimony that is not subject to complete and full cross-examination because of a witness’s intervening illness or death (R. v. Cameron (2006), 208 C.C.C. (3d) 481 (Ont. C.A.), at paras. 36-37). In those cases, the lack of testing by cross-examination is taken into account in weighing what is otherwise admissible evidence. Similarly, in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.

I have adopted this approach in reviewing the ITO in this case.

B. The Debot Criteria: The “Three C’s”

(i) Overview

[11] It is now well established that a determination of whether information from a confidential source provides the reasonable and probable grounds necessary to justify the issuance of a warrant requires a consideration of the “three Cs” discussed in Debot, that is, whether the information from the source was credible, whether it was compelling and whether it was corroborated. In making this assessment, the totality of the circumstances must be considered and weaknesses in one area may be compensated for by strength in the other areas: Debot, at p. 1168.

[12] As noted earlier, there were three confidential informants in this case, whom I will refer to as CI#1, CI#2 and CI#3. I will consider the “three Cs” with respect to each. Before I do, however, I would note that all of the information from CI#1 and CI#2 relates to Brewster. None of it relates directly to the applicant. The grounds in relation to the applicant are based largely, but not exclusively, on information respecting her association with Brewster. Of course, unless there are grounds to believe that Brewster was engaged in drug trafficking, the applicant’s association with him would be irrelevant.

(ii) Credibility

[13] The credibility assessment relates to the trustworthiness of the source of the information in the ITO and will involve considerations such as the informer’s motivation, his or her criminal history and any past history in providing information to the police: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, at para. 35. No one factor is determinative: R. v. Basset (2008), 177 C.R.R. (2d) 330 (Ont. S.C.J.), at para. 20.

[14] Both CI#1 and CI#2 provided their information to the police out of self-interest in the hopes of obtaining either financial compensation or else consideration in relation to outstanding charges. This detracts from their credibility. As well, one or both of CI#1 and CI#2 has a lengthy criminal record which includes offences of dishonesty and offences against the administration of justice. While the applicant is not aware which CI has a record, I have taken it into account and view it as detracting from the credibility of the CI in question.

[15] CI#1 has provided information to the police on at least 50 prior occasions. That information has led to consideration for CI#1 about 20% of the time. The affiant, who was cross-examined on this issue, was unable to say why the information did not lead to any consideration in the remaining 80% of the time. The fact that the information provided has led to results in some cases provides some support for CI#1’s credibility. CI#2 has provided information on an unknown number of occasions, none of which has led to any consideration. Again, the reason for this is unknown to the affiant.

[16] Based on the foregoing, with respect to CI#1 and CI#2, some factors enhance credibility while others detract from it.

[17] CI#3 has no criminal record, has never provided information in the past, and provided information in order to assist the police and not out of self-interest. In my view, the factors with respect to credibility are overall mostly neutral.

(iii) Compelling

[18] This aspect of the Debot analysis relates not to the source of the information, but rather the information itself and whether it has the characteristics that lead to the conclusion that it is reliable. A tip can be said to be compelling if it is detailed and based on first hand observations that are reasonably current: Greaves-Bissesarsingh, at para. 40. An example of a compelling tip can be found in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28:

Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent’s brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip: R. v. Debot, at 1168-69.

See also R. v. Nguyen, 2015 ONCA 753, 342 O.A.C. 144, at para. 18; R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.), at para. 9-11.

[19] The information provided in this case was significantly less compelling than in Rocha. With respect to both CI#1 and CI#2, it is not at all clear whether the information provided was based on first hand observations or how current the information was. The ITO states that “most” of the information was the result of first hand observations. However, the affiant acknowledged that not all of the information was first hand, and for the most part he is unable to say which parts are first hand and which are not.

[20] That said, the ITO does set out that both CI#1 and CI#2 provide some information that is clearly based on first hand observations.

[21] With respect to CI#3, once again the ITO is not clear about whether the information being provided was based on first hand knowledge. However, with this CI it can be inferred that this was first hand knowledge. For example, the CI was able to recognize both the applicant and Brewster, suggesting that he or she had seen them in the past.

(iv) Corroborated

[22] As observed in Rocha, at para. 22, “[t]he police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required”. See also Herta, at para. 38; R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, aff’g 2007 ABCA 380, 84 Alta. L.R. (4th) 226, at paras. 22-24. On the other hand, meaningful corroboration requires more than confirmation of neutral or easily discernible facts: Herta, at para. 40; R. v. Muller, 2011 ONSC 4892, 276 C.C.C. (3d) 167, at para. 48, rev’d on other grounds 2014 ONCA 780, 122 O.R. (3d) 721.

[23] With respect to CI#1 and CI#2, their information is said to be corroborated by police surveillance in which Brewster and the applicant were seen engaging in what the police believed to be drug transactions. Brewster was involved in such transactions on four occasions on April 13, April 25, May 7 and May 21, 2016. The applicant was involved in two alleged transactions, on March 23 and April 13. She was also present during the alleged May 21 transaction involving Brewster. The affiant was not challenged with respect to his belief that these were drug transactions.

[24] In addition to the surveillance, the Crown also relies on the fact that both Brewster and the applicant have prior convictions for drug trafficking. Brewster’s record was lengthy and relatively recent. The applicant’s had a single entry from 2008.

[25] The ITO also states that the applicant was facing an outstanding drug trafficking charge. At the hearing of the application, it was discovered that that charge had in fact been withdrawn in May 2016, prior to the swearing of the ITO. The Crown concedes that this information should therefore be excised from the ITO.

[26] With respect to CI#3, the police observed Brewster attend the parking lot of the building on Lakeshore Boulevard West on one occasion. It would appear that they also had video surveillance of the applicant and Brewster in the parking area.

(v) Conclusions Respecting the Debot Criteria

[27] In assessing the “three C’s” with respect to CI#1 and CI#2, it must be kept in mind that insofar as the applicant is concerned, their only role is to establish grounds to believe that Brewster was involved in drug trafficking. The details of that trafficking are not important. As noted, both CI#1 and CI#2 provided some compelling information that Brewster was a trafficker and that information is corroborated to some degree. In all the circumstances, I am satisfied that the ITO sets out grounds to believe that Brewster was trafficking.

[28] With respect to CI#3, I am satisfied that this was first hand information from a source who had no apparent reason to provide false information to the police.

C. Grounds Respecting the Applicant

[29] For the reasons noted, the ITO sets out sufficient grounds to establish that Brewster was a trafficker and that the applicant rented the condominium unit on Lakeshore. The question that remains is whether it also establishes grounds to believe that the applicant was also involved in drug trafficking and that evidence of the offence would be found in the condominium.

[30] The information in the ITO said to establish grounds to believe that the applicant was involved in trafficking were (1) her association with Brewster; (2) her participation in two alleged transactions and her presence at a transaction involving Brewster; and (3) her prior record for trafficking. While these grounds are not particularly strong, in my view they are sufficient.

D. Grounds to Believe That the Search Would Afford Evidence

[31] Even if there were reasonable and probable grounds to believe that Brewster and the applicant were involved in trafficking, the mere fact of their attendance at an address would not, in my view, give rise to reasonable and probable grounds to believe that a search of that address would afford evidence: Herta, at para. 51. However, in this case there was more than mere attendance. There was information that the applicant rented the premises.

[32] In considering whether there were grounds to believe that a search of the premises would afford evidence, I note that the police were looking not only for drugs, but for other evidence such as smartphones or tablets that might contain relevant information: R. v. Clairoux, 2018 ONCA 629, at para. 9. As well, the information in the ITO suggests that the applicant resided somewhere other than the condominium, which suggests that she rented the condominium for some purpose other than to be her residence. On the application, she testified that she rented the condominium at Brewster’s direction to use as a place to carry on prostitution-related activities. While I accept her evidence, this was not known to the police at the time the ITO was sworn.

E. Conclusion

[33] The ITO in this case leaves much to be desired. It is not clearly written. It uses boilerplate language in places where it does not belong. For example, the same language respecting the possibility of consideration and compensation and the source being “well entrenched in a criminal lifestyle” is repeated word for word not only with respect to CI#1 and CI#2, but CI#3 was well. This is so even though it is clear that CI#3 sought no compensation or consideration and was clearly not “well entrenched in a criminal lifestyle”. As well, while the ITO alleges that the applicant had an outstanding drug charge, that charge had been withdrawn approximately a month before the ITO was sworn.

[34] However, the fact that an ITO is badly drafted or that there was some negligence in the manner it was prepared does not, by itself, establish a violation of s. 8 of the Charter. Where an ITO contains errors or inaccuracies, they must be excised and the reviewing court must determine if what remains is sufficient to justify the issuance of the warrant: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 42-47.

[35] Had I been the authorizing judge, I may well have declined to issue the warrant in this case. However, that is not the test. The test is whether, after excision and amplification, the grounds set out in the ITO were such that the authorizing judge could have issued the warrant: Araujo, at paras. 51, 54. In my view, that low threshold has been met in this case.

III. DISPOSITION

[36] For the foregoing reasons, the application is dismissed.

Justice P.A. Schreck Released: November 23, 2018.