COURT FILE NO.: 818/17
DATE: 2019 04 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Stackhouse, for the Crown
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
M. Luft for Demetre Hibbert and M. Salih for Raquel Williams
HEARD: April 4, 2019
RULING
RE: Ruling on Amplification of the Information to Obtain
DENNISON J.
Overview and Facts
[1] The applicants seek to have a firearm and drugs that were seized pursuant to two search warrants excluded from their respective trials. The applicants argue that there were not reasonable and probable grounds to issue the warrants and that I should find that there is no basis upon which the authorizing justice could have issued the search warrants.
[2] I have already made a series of rulings during the course of the Garofoli application to exclude the evidence as the case management judge assigned to deal with the Charter applications in this case. In this application, the applicants submit that amplifications to the Information to Obtain (“ITO”) should be made based on the cross-examination of the affiant and an email filed with the court, prior to arguing step five of the Garofoli application.
[3] The issuance of the search warrants in this case arose out of a police investigation into a drive-by shooting that occurred in December 2, 2016. Police believe that Mr. Hibbert was the shooter and obtained search warrants to search his BMW vehicle and two residence where Mr. Hibbert was believed to be residing. Police executed the search warrant on the BMW in March 10, 2017 and discovered a loaded firearm. Police also executed a search warrant on the same day at unit 201-8 Newhaven Manor, Brampton, Ontario, which was leased to Ms. Williams. During the search of the residence, police located a variety of drugs. As a result of the items seized during the execution of the search warrants, Mr. Hibbert was charged with several firearm offences and Ms. Williams was charged several drug offences.
Analysis: The Governing Legal Principles
[4] An accused may bring a facial validity challenge and/or a sub-facial validity challenge of a search warrant when seeking to exclude evidence at trial.
[5] A sub-facial validity challenge involves putting material before the reviewing justice that was not before the issuing justice. Counsel may argue that the material should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. Counsel may also argue that on the augmented record placed before the reviewing justice that the affiant deliberately or at least recklessly, misled the issuing justice, rendering the entire ITO unreliable: see R. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 252, at paras. 40-41; R. v. Sadikov, 2014 ONCA 72, at paras. 37-38; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57.
[6] An ITO may also be amplified to show that errors contained in the ITO were made in good faith for the purpose of assisting in determining if there was some believable evidence that would form a basis upon which the search warrant could have been issued. The purpose of amplification and its role in considering the sufficiency of the warrant was discussed by the Court of Appeal in R. v. Crevier, 2015 ONCA 619, at paras. 74 and 75 as follows,
A sub-facial challenge, however, goes behind the ITO “to attack the reliability of its content”: Araujo, at para. 50. Any errors and inaccuracies in the ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith. In determining the sub-facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified on review, “there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued” (Araujo, at para. 51). An accused might, for instance, challenge the credibility and reliability of the ITO affiant through cross-examination. This could serve to undermine the reliability of the affiant’s statements in the ITO, including the information attributed to the confidential informer: see e.g. R. v. Brown, 2013 ONSC 2848, 282 C.R.R. (2d) 220, at para. 115.
An accused might also argue, for example, that statements in the ITO describing police observations of hand-to-hand drug transactions between the accused and others are inaccurate because of evidence led showing that the accused was in another jurisdiction at the time these observations were allegedly made. Such inaccurate statements would be excised and would not be considered in determining whether the warrant could have issued. The Crown, however, may be able to amplify the record by introducing evidence that police made the observations on a different date and that the ITO affiant, acting in good faith, mistakenly provided the wrong date in the ITO. [Emphasis added]
[7] In Araujo, the Supreme Court of Canada recognized the dangers in permitting amplification that goes too far beyond the material that was placed before the issuing justice and stated that caution must be exercised when considering amplification. The Court noted,
The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification. [Emphasis added]
[8] The jurisprudence generally discusses situations where the Crown seeks to amplify the ITO to demonstrate that an error in the ITO was made in good faith. There does not however appear to be a prohibition from an accused seeking to amply the ITO if it is appropriate amplification.
Application of the Law to this Case
[9] The applicants seek to amplify the ITO on six points. The Crown consents to some of the amplifications. I will address each issue below.
1. Include that Ms. Lewis provided information that the real shooter’s name was Mendelle or Menzelle
[10] The applicants seek to amplify the ITO by adding the sentence that “Ms. Lewis provided information that the real shooter’s name was Mendelle or Menzelle.” The Crown consents to this amplification but states that it should include that she waivered or was unsure in providing the names to be consistent with the testimony of the affiant.
[11] The ITO did not contain information that Ms. Zariah Lewis provided names of the suspected shooter. The affiant was cross-examined about why this information was not contained in the ITO. He testified that Ms. Lewis was so sure of the nickname that he included that information in the ITO, but with respect to the name of the shooter being Mendelle or Menzelle she seemed unsure. She only used the names once and thereafter used the nickname “Meechie”. He also testified that when Ms. Lewis was interviewed the first time, she referred to people using nicknames as opposed to names and when she said the name Mendelle or Menzelle that indicated to him that she was wavering on the name.
[12] The information that the applicants seek to add to the ITO is not an amplification, as it does not correct an error in the ITO that was considered by the issuing justice. The information from Ms. Lewis that was not contained in the ITO is an omission. The applicants may still raise this omission in the Garofoli application. As explained by the Court of Appeal in R. v. Nugyen, [2011] ONCA 465, at para. 23, an omission may still be considered in determining if there was a basis upon which the authorization could have been issued,
The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.
2. Include Ms. Lewis’ source of knowledge of the statements given to police set out in paragraph 10(g) of the ITO
[13] The applicants also seek to amplify the information from Ms. Lewis in paragraph 10(g) of the ITO to include the fact that the information was not first hand knowledge. Paragraph 10(g) states “Zariah knows that the “MBG” group lives in the high rise building across from the McDonalds at the intersection of Derry Rd. and Goreway Dr. in Mississauga”.
[14] The Crown’s position is that the affiant was not asked this question in cross-examination. The Crown recalled that the affiant was asked about the source of Ms. Lewis’ information regarding the suspect’s nickname, the name of the suspect and where the suspect lived. I have reviewed the affiant’s evidence on this point and the Crown is correct. The affiant was not asked what the source of Ms. Lewis’ information was with respect to where the “MBG” lived. The affiant was asked:
Q. You received information and she gave you the shooter’s nickname?
A. Yes, the shooter’s nickname and who she thought the shooter’s name was.
Q. When gave shooters name or what she thought was the shooter’s name she received it from someone else?
A. Yes.
Q. Same source presumably where she received the nickname?
A. Yes.
Q. Same source that gave information as to where he lives?
A. Yes.
[15] Counsel for the applicants submit that even if the affiant was not asked where the “MBG” group lived, the ITO should still be amplified to clarify the source of Ms. Lewis’ information regarding the name of the shooter, the nickname of the shooter and where he lives so that it is clear that it was not first-hand information. I am satisfied that it is appropriate to amplify paragraph 10(b) to state that “Zariah received information from a source that the suspect had a nickname of “Meechie”. Although the wording in the ITO may not be characterized as an error, the language chosen by the affiant lacks clarity and may be perceived as misleading. The affiant’s evidence in cross-examination clarified the source of Ms. Lewis’ information in this paragraph. The ITO does not state that Ms. Lewis provided information regarding the name of the suspect or where the suspect lived in the ITO. There is therefore no basis to amply the ITO as requested by the applicants on these points.
3. Correct the statement that Ms. Lewis drove past an apartment building twice since the shooting and observed the suspect’s vehicle
[16] The Crown agrees that the statement contained in paragraph 10(c) of the ITO that states “Zariah advised that she has driven past an apartment building twice since the shooting and observed the suspect’s vehicle parked in front of the building” should be amplified as it is erroneous. I agree. That paragraph should be amplified to state that “Zariah advised that her boyfriend drove past the building twice since the shooting and observed the suspect vehicle parked in front of the building and that Zariah advised that her boyfriend brought her to the building once to show her the vehicle but it was not there.”
4. Add to the ITO that Constable O’Connor provided information from a CI that the shooters were Tyree Johnson and Demetre Hibbert
[17] The applicants filed an email from Constable O’Connor related to the investigation of the drive by shooting. The email states “received a call from a CI about this. Malton boys feuding with each other. Tyler Edwards-Dicey is victim. Your shooter is Tyree Johnson-Fuller and Demetre Hibbert. They were driving a silver BMW.” This information was not contained in the ITO and the applicants submit that it should be added.
[18] The Crown’s position is that she is not opposed to adding this information as it appeared to support her position that Mr. Hibbert was the shooter, but she submitted that there was not much point in adding this information as it could not be given any weight. The information was from a CI and without more information about the CI, the information’s reliability could not be tested applying the factors set out in R. v. Debot, [1989] 2 S.C.R. 1149.
[19] As explained in paragraph 12 above, the information from the email that the applicants seek to add is not an amplification of the information contained in the ITO. This is an omission of information that is not contained in the ITO that the applicants may raise in the course of argument at the Garofoli application.
5. Amplify paragraph E-35-e to add the names of the two other occupants in the home
[20] Paragraph E-35-e of the ITO states:
On February 25, 2017 at approximately 1:15 a.m. shots were fired into the residence located at 3234 Victory Crescent Mississauga. Investigators located multiple bullet holes in the front window of the house, inside the house were 4 occupants that included Khadeem Brown-Ramkisson and Jahlani Brown-Ramkisson.
[21] The applicants submit that the name of the two other occupants of the house should be included in this paragraph. The Crown consents to naming the two other occupants.
[22] Arguably, the failure to include the names is an omission as opposed to an amplification. However, given that the ITO states that there were four occupants and the parties agree that this issue should be clarified, I am prepared to make this amplification and add the names Lorraine Brown and Winston Japp. This clarifies who the four occupants were in the residence at the time of the shooting.
6. Change the word “prior to” to “earlier in the evening” in paragraph E-35-f
[23] The applicants also seek to amplify paragraph E-35-f which states:
On February 25, 2017 Cst. Paschalis interviewed Khadeem Brown-Ramkisson in relation to the shooting into his residence. Khadeem advised that prior to the shooting he was out with his close friend Demetre Brown.
[24] The affiant was cross-examined and agreed that Khadeem Brown advised the officer that he was with Demetre Brown “earlier in the evening.” The applicants submit that “prior to” can lead someone to believe that Mr. Demetre Brown was at the residence immediately prior to the shooting when that was not the information that police received. The Crown submits that this request is the type of parsing of words that the jurisprudence states should not be done when considering the sufficiency of the ITO.
[25] While, I am inclined to agree with the Crown’s submission that this is parsing of words, I am nonetheless prepared to make this amplification. Adding the words “earlier in the evening” clarifies the timing of when Mr. Demetre Brown and Mr. Khadeem Brown were together. “Prior to the shooting” is not as clear, may be interpreted as being inaccurate information in the ITO given that this was not what Mr. Khadeem Brown told the affiant.
CONCLUSION
[26] For the reasons set out above, I have granted the above amplifications for the purpose of argument on the Garofoli application.
Dennison J.
Released: April 9, 2019
COURT FILE NO.: 818/17
DATE: 2019 04 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
RULING
(RE: Ruling on Amplification of the Information to Obtain)
Dennison J.
Released: April 9, 2019