COURT FILE NO.: CR-17-90000695-0000 DATE: 20190114 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Deepak Prasad
BEFORE: H. McArthur J.
COUNSEL: B. Puddington and A. Choat, Counsel for the Crown C. Morris, Counsel for the Defendant
HEARD: January 9 and 10, 2019
Reasons on section 8 application
Introduction
[1] Deepak Prasad brings an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of drugs and cash seized from his residence and car.
[2] The evidence was discovered in August 2016 when police executed search warrants. Search warrants are presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30. Mr. Prasad thus bears the burden of demonstrating that the warrants were not validly issued, that is, that the minimum standards required for authorizing the searches were not established in the Information to Obtain the warrants (the “ITO”): R. v. Crevier, 2015 ONCA 619, at para. 66.
[3] In this case, the ITO relied on information from two confidential informants. In order to protect their identities, much of the material in the ITO was redacted before being provided to the defence. Mr. Prasad argues that on the basis of the information revealed in the redacted ITO, the authorizing justice could not have issued the warrants.
[4] The Crown concedes that the redacted ITO could not justify the warrants. As a result, in what is often referred to as a “step six application” (named for the sixth step in the procedure set out in R. v. Garofoli) the Crown asks the court to consider the redacted portions of the ITO in determining whether the warrants could have issued: R. v. Garofoli, [1990] 2 S.C.R. 1421.
[5] The Crown provided a judicial summary, setting out, where possible, the nature of the redacted content. I reviewed the proposed summary and, in writing, questioned the need for some redactions. The Crown agreed with some of those suggestions. For some of the redactions, however, the Crown advised that the information could not be summarized. As explained in Crevier, at para. 87, when assessing the validity of the warrant, the trial judge should “disregard those redacted portions the nature of which could not be summarized and provided to the accused”.
[6] On a step six application, the Crown is entitled to have the reviewing judge review the unredacted ITO only if the judicial summary provides the applicant with a meaningful basis upon which to challenge the warrant: Crevier, at paras. 83-84. Mr. Prasad argued that the judicial summary did not provide him with this basis. For reasons given orally in court, I found that the summary was sufficient to allow Mr. Prasad to make a meaningful attack on the warrant. [1] I thus heard submissions as to whether on the basis of the information in the ITO which could be considered, the warrants could have issued.
[7] For reasons that are set out below, I am satisfied that there was a basis upon which the authorizing justice could be satisfied that the relevant pre-conditions to issue the warrant existed; that is, that reasonable and probable grounds existed that an offence had been committed and that there was evidence of that offence to be found in Mr. Prasad’s residence and car. The information before the justice was credible, compelling and corroborated. As a result, the s. 8 application is dismissed.
[8] I propose to start out with a very brief overview of the facts before turning to my analysis.
Brief Overview of the Facts
[9] In January 2016, Police Constable Jay Corcoran received information from a confidential source (“CI#1”) about a male selling cocaine at the House of Lancaster strip club in Toronto. CI#1 identified this male as being Mr. Prasad. The police took steps to corroborate details of the tip provided. Ultimately, the police applied for and were granted warrants to search for cocaine and indicia of trafficking at the address then associated with Mr. Prasad (33 Tyndall Avenue) and a vehicle that was also associated with Mr. Prasad. For reasons that were not explained to the court, however, the search warrants were never executed.
[10] In August 2016, the police received a tip from a second confidential source (“CI#2”) about a suspicious male who may possibly be involved in the drug trade. This man fit the general physical description of Mr. Prasad. An address of 2212 Lake Shore Boulevard West (“2212 Lake Shore”) was mentioned, but because of redactions that cannot be summarized, there is no information that can be considered by this court as to why this address was mentioned. However, 2212 Lake Shore was an address that had been associated with Mr. Prasad in the past. Police Constable Edward Tamse had seen a car associated with Mr. Prasad parked at 2212 Lake Shore on February 7, 2016, as well as on July 5, 6 and 7, 2016.
[11] After receiving the tip in August, police set up surveillance at 2212 Lake Shore. On August 29, surveillance officers saw Mr. Prasad leaving the complex at 2212 Lake Shore, driving a rented 2017 black Ford Explorer SUV, plate number CAAF128. Mr. Prasad drove to another area where he stopped his car to allow a female to get in the car. She exited shortly after, while looking around. The affiant characterized her behaviour as consistent with a drug trafficker or someone who had just purchased drugs. Surveillance officers then saw Mr. Prasad drive to another area and saw a male get into his car. Three minutes later the male got out of the car and looked at something clenched in his hand. The affiant characterized this behaviour as consistent with a drug trafficker or someone who had just purchased drugs.
[12] Later on August 29, Mr. Prasad was observed parking the Ford in parking spot #3013, at 2212 Lake Shore. On August 30, 2016, the police obtained a copy of the Lease Agreement for unit #1801, 2212 Lake Shore, which was associated with parking spot #3013. Mr. Prasad was listed as a tenant.
[13] Police also obtained surveillance tape from 2212 Lake Shore from August 29. The tape showed Mr. Prasad leaving the building carrying a white bag that appeared weighted. The tape showed Mr. Prasad dropping the bag through the passenger side window of a red car, speaking briefly with the driver and then walking away.
[14] On a date known to the issuing justice (but redacted from the disclosed ITO) PC Corcoran was directed to obtain updated information about Mr. Prasad from CI#1. He did so and the source advised that Mr. Prasad was “still” dealing cocaine and that the source had “recently” purchased cocaine from Mr. Prasad.
[15] On August 31, 2016, the justice issued warrants to search #1801, 2221 Lake Shore and the 2017 Ford Explorer, CAAF 128.
Analysis
[16] In assessing the submissions of counsel, I 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, the justice could have authorized the warrants. If I conclude that the warrants could have issued, 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, at para. 51. As noted above, I am not to consider any information that was before the issuing justice that has not been disclosed in the redacted ITO or outlined in the judicial summary.
[17] As explained recently by Fairburn J.: “When reviewing the ITO for sufficiency, the trial judge [is] required to take a common-sense and holistic approach”: R. v. Herta, 2018 ONCA 927, at para. 21. A determination of whether information from a confidential source (CI) provides the reasonable and probable grounds necessary to justify the issuance of a warrant requires a consideration of the three criteria discussed in R. v. Debot, [1989] 2 S.C.R. 1140. The court should consider whether the CI was credible, and whether the CI information was corroborated and compelling. The court must look at the totality of the circumstances. Weaknesses in one of the Debot criteria can be compensated for by strengths in the other areas.
(i) Were the CIs credible?
[18] There are two confidential sources in this matter. CI#1 is an admitted drug user, which detracts from his or her credibility. On the other hand, CI#1 was a registered informant with the Toronto Police Services. The redacted ITO revealed that CI#1 had provided information to the police in the past. Further, the redacted ITO noted that information provided by this source led in the past to arrests and charges. Appendix “E” of the ITO provided background information about CI#1. The judicial summary advised that this information included whether the source had a criminal record, and, if so, details of the record; whether the source had outstanding charges or was on probation; details of information provided by the source in the past, including whether or not any arrests and/or seizures were made as a result of the information provided; and the motivation for the source to provide information. Having reviewed this information, it is clear to me that there was ample information before the issuing justice to evaluate the source’s credibility, and to find the source credible.
[19] As it relates to CI#2, there is less information revealed in the redacted ITO than there was for CI#1. The redacted ITO noted that no promises or inducements were made to the source in relation to the information provided. Appendix “G” of the ITO set out information about this source, but much of it was redacted. The judicial summary noted that the appendix outlined whether or not the source had a criminal record, and if so, details of the criminal record. It also set out whether or not the source had any outstanding charges or was on probation. Details of information provided by the source in the past, including whether or not any arrests and/or seizures were made as a result of the information provided were also set out in the ITO. Finally, the motivation of the source was disclosed in the ITO. Having reviewed this information, I am satisfied that there was ample information before the issuing justice to evaluate this source’s credibility, and to find this source credible.
(ii) Was the Information Compelling?
[20] As noted by Code J. in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 40, a detailed tip, based on first-hand observations that are reasonably current, has generally been considered compelling.
[21] With respect to CI#2, the vast majority of the information provided by this source was not summarized and cannot be considered by this court. What can be considered simply references an unknown male (who fits the general physical description of Mr. Prasad) who may be dealing in drugs. In my view, the information that can be considered by CI#2 is far from compelling.
[22] With respect to CI#1, there is little dispute that the information provided by this source in January 2016 was compelling. Even on the redacted version of the ITO, it was apparent that the information was first-hand and current. The source provided an address and phone number for Mr. Prasad. He/she provided a description of Mr. Prasad and identified him from a photo. He/she told the police that Mr. Prasad would drive off in his car to and then return with cocaine. The source told the police where Mr. Prasad lived at 33 Tyndale and described the residence. The source told the police that Mr. Prasad kept drugs at his place. The source told the police that he had he/she had purchased drugs from Mr. Prasad, and that he/she had purchased cocaine from Mr. Prasad in January.
[23] Further, as it relates to the follow up information provided by CI#1, even on the redacted ITO it is clear that the source is providing first-hand information about Mr. Prasad trafficking in cocaine. Mr. Prasad argues, however, that this information was not current in August. As a result, he argues that there was no compelling information to suggest that Mr. Prasad was involved in drug trafficking. I cannot agree. The redacted ITO noted that the source told police that Mr. Prasad was “still” dealing cocaine and that the source had “recently” purchased cocaine. The material before the issuing justice that was summarized (and can thus be considered by this court) would allow the issuing justice to evaluate the currency of the information provided by CI#1 and to find that it was reasonably current.
[24] Mr. Prasad also argues that there was no compelling evidence to suggest that evidence would be found in either his residence or car in August. He points out that while CI#1 told the police in January that Mr. Prasad kept drugs in his place, he failed to tell the police this when they followed up with him.
[25] I agree with the defence that the information to suggest that Mr. Prasad kept drugs in either his home or his car was not as compelling in August as it was in January. The follow up information gathered by the police did not specify that Mr. Prasad kept drugs in his home or car. On the other hand, it seems reasonable that if Mr. Prasad was “still” dealing drugs that he would still use the same modus operandi. That is, just because his place had changed, did not mean that he would not still store drugs in his place. In my view, it was open to the issuing justice to find that there was reasonably compelling information to suggest that evidence of drug trafficking would be located in Mr. Prasad’s home or car.
(iii) Was the Information Corroborated?
[26] There is little dispute that the police corroborated the information provided by CI#1 in January. The source said the man who was trafficking from the House of Lancaster was named Danny Prasad. Police confirmed through a check of a police data base that Danny was an alias used by Mr. Deepak Prasad. The source gave a physical description of Danny that was consistent with Mr. Prasad. The police showed the source a picture of Mr. Prasad, and the source identified him as Danny. The source also told police that Danny lived at 33 Tyndall Avenue. Police did a CPIC check that showed that 33 Tyndall was Mr. Prasad’s last known address. The Ministry of Transportation also had Mr. Prasad’s address listed as 33 Tyndall. The source provided a description of 33 Tyndall Avenue that was corroborated by the police. The source told the police about Mr. Prasad’s association with a red Cadillac that was also corroborated. The source provided a phone number for Mr. Prasad. When the police called this number, the man who answered engaged in a drug related conversation.
[27] Mr. Prasad argues, however, that there was no corroboration to support that drugs would be found in either Mr. Prasad’s home or car in the month of August. As it relates to CI#2, I agree with the defence that the information that can be considered by this court is so sparse and vague that it does not corroborate the tip from CI#1 in any way.
[28] In my view, however, the police were able to corroborate information relevant to whether and where drugs would be found in August. As the judicial summary notes, CI#1 provided police with information about where the source believed Mr. Prasad to be currently living. Police made observations of Mr. Prasad leaving 2212 Lakeshore, and they obtained a lease agreement that showed that Mr. Prasad was listed as a tenant for #1801, 2212 Lake Shore. The issuing justice would be able to compare the information provided by the source to the information uncovered by the police to evaluate whether the information was corroborated.
[29] Moreover, the ITO advised that the police reviewed a surveillance video from August 29 in which Mr. Prasad was seen leaving the building with a white plastic bag that appeared “weighted”, and dropping the bag through the passenger side window of a car, talking briefly to the diver before walking away. The ITO also explained that on August 29 surveillance officers observed Mr. Prasad driving in the rented Ford. While in the vehicle, the police saw Mr. Prasad engage in two suspected drug transactions. In my view, the information before the issuing justice was sufficient to conclude that the tip from CI#1 that Mr. Prasad was “still” trafficking in drugs had been corroborated by the police. Further, the observations reasonably suggested that evidence of this trafficking would be located in Mr. Prasad’s residence and his car.
Conclusion
[30] The information before the issuing justice allowed a determination that CI#1 and CI#2 were both credible. The information provided by CI#1 that Mr. Prasad was engaged in drug trafficking was compelling. Moreover, the information before the issuing justice that can be considered by this court provided compelling information that as of August 2016, Mr. Prasad was still involved in drug trafficking, and that evidence of this offence would be found in his home and car. This information was corroborated by the police.
[31] The issuing justice could have authorized the search warrants. It was open to the justice to find that the ITO established reasonable and probable grounds to believe that Mr. Prasad was trafficking in drugs and that evidence of that offence would be found in his residence at #1801, 2212 Lake Shore and the 2017 Ford Explorer he had been seen driving two days earlier. As a result, the application to exclude the evidence pursuant to ss. 8 and s. 24(2) is dismissed.
Justice Heather McArthur
Date: January 14, 2019
R. v. Prasad, 2019 ONSC 336 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DEEPAK PRASAD REASONS on SECTION 8 APPLICATION Justice Heather McArthur
Released: January 14, 2019