Court File and Parties
COURT FILE NO.: 17-G1001 DATE: June 17, 2019 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – TAMARA BAHLAWAN
COUNSEL: Brigid Luke for the Crown/Respondent Fady Mansour for the Defendant/Applicant
HEARD: May 6, 2019
Ruling on Garofoli Application
1On November 22, 2016, police executed search warrants issued pursuant to s. 11 of the Controlled Drugs and Substances Act (“CDSA”) on three residences, including the residence of the applicant Tamara Bahlawan. The warrant for her residence permitted police to enter it to search for cocaine and crack cocaine, as well as cellphones, cash and other items associated with or used in the sale and distribution of drugs. During the search, the police did not find these drugs or any of these items, but they did find an unregistered, loaded hand gun. Bahlawan has since been charged with nine counts under the CDSA and the Criminal Code.
2In this Garofoli application, Bahlawan says that the search breached her rights under s. 8 of the Canadian Charter of Rights and Freedoms and, as a result, she seeks an order excluding all evidence seized by the police at her residence. She claims that the ITO was misleading, because opinions by confidential informers (“CIs”) were presented as facts. She further argues that the officer who swore the affidavit in support of the Information to Obtain (“ITO”) failed to identify the specific source of the CIs’ information and that, on review, I cannot assess their reliability.
The ITO
3The search warrant was authorized based on an ITO sworn by Det. Matthew Cox (the “Affiant”). In the ITO, the Affiant relied on information from two confidential informers and police surveillance of Bahlawan and another individual, Ahmad Al Enzi.
4According to the ITO, the first confidential informer (CI#1) told his police handler that Al Enzi was selling cocaine, fentanyl and crack. He lived with his mother at 135 Lillibet Crescent. Al Enzi’s girlfriend was Tamara Bahlawan, who lived at 21 Shandon Avenue. CI#1 initially told his police handler that Al Enzi’s “stash” was located at buildings to the rear of 1440 Heron Road. A month later, CI#1 told the handler that Al Enzi was “still keeping drugs at Tamara’s place on Shandon” as well as with “Nate” at 1470 Heron Road.
5The ITO stated that the second confidential Informer (CI#2) also told his handler that Al Enzi was selling crack and coke, that he lived with his mother at 135 Lilibet Crescent, that his girlfriend was named Tamara and that he sold drugs at “Nate’s apartment” at 1470 Heron Road, unit 311. He also said Tamara did deals for Al Enzi and that he used a red Honda Accord to deal drugs. Finally, according to the ITO, CI#2 said that Al Enzi “isn’t stupid and most likely keeps his drugs with his girl so she will wear it and not him if they get caught”.
6The Affiant stated that the information provided by the CIs was obtained “from observations made by them, and/or from conversations that they had with one or more persons being investigated”. The source of any particular tip was not disclosed.
7The ITO set out, at some length, the history of each Informer’s past co-operation with the Ottawa police.
8CI#1 had been known to his handler, another detective with the Ottawa Police, for four years and provided information solely for financial gain. He had provided information that led to six CDSA search warrants where drugs had been located and charges laid. He had also provided phone numbers and information in connection with 80 drug purchases where trafficking charges were laid and drugs seized. CI#1 had provided information in regards to the investigation at issue three times. According to the Affiant, CI#1 had never provided any misleading or untruthful information.
9The Affiant said that he himself handled CI#2, whom he had known for about two and a half years. CI#2 provided information to the police for money and other unspecified consideration. He had provided information to the Ottawa police more than 50 times, leading to 24 criminal investigations, including five Criminal Code investigations and 19 CDSA investigations. In many of these investigations, drugs or guns were found as a result of a search. The Affiant stated that CI#2 had provided information to the Ottawa police in respect of this investigation two previous times, and had never provided false or misleading information.
10The Affiant also set out the results of surveillance and investigation of Al Enzi and Bahlawan by the Ottawa police in October and November 2016. The investigation confirmed that Al Enzi resided at 135 Lilibet Crescent and Bahlawan lived at 21 Shandon Avenue. Bahlawan was observed driving a red Honda Accord registered to Hassan Bahlawan, whose address was also listed as 21 Shandon Avenue. An individual named Nathan McCorkle lived at 1470 Heron Road, unit 311. He had a past conviction for drug trafficking.
11On six dates between October 13 and November 21, 2016, Tamara Bahlawan was observed leaving the house at 21 Shandon Avenue, getting into the red Honda registered to Hassan Bahlawan and driving away, then arriving at 135 Lilibet Crescent a short time later. Al Enzi was then observed leaving his residence and getting into the Honda with Bahlawan. On all but one of these dates, he took the driver’s seat and Bahlawan moved to the front passenger seat. They then drove the red Honda to various locations in Ottawa and parked. The Honda was approached by individuals who arrived in other vehicles and who joined them inside the car for a few minutes. On two occasions, individuals who had been in the red Honda were later seen by police smoking crack cocaine. Al Enzi conducted some hand to hand transactions in sight of the surveillance team. Bahlawan was never observed to do so.
12On five of these dates, Al Enzi and Bahlawan were later followed as they drove the red Honda to 1470 Heron Road. They were seen entering unit 311 on four dates, while on the fifth they were only observed going to the third floor of the building. On two of the evenings, after Al Enzi and Bahlawan entered unit 311, other individuals briefly visited the residence.
13There was also one evening when Bahlawan was observed arriving at 135 Lilibet Crescent to pick up Al Enzi, but there was no surveillance establishing that she had driven from 21 Shandon Avenue. The behaviour otherwise observed matched what was seen on other dates. Al Enzi and Bahlawan drove to two locations where individuals approached them and appeared to do transactions either with Al Enzi or inside the red Honda, out of sight of the surveillance team. Later that evening, Al Enzi and Bahlawan drove to 1470 Heron Road and entered the main door of the building.
14Based on the information and surveillance, the Affiant concluded that there were reasonable grounds to believe that Al Enzi and Bahlawan were engaged in the sale of drugs from the red Honda and unit 311, 1470 Heron Road. The Affiant stated that, in his experience, drug dealers generally limit the amount of drugs they possess on their person, to minimize the risk of being arrested with substantial quantities of drugs or being robbed of their drugs. They also do not carry equipment related to the drug trade when they meet customers, instead keeping these items at another fixed location. He stated that this “base” location is most commonly the residence of the trafficker.
15In a section entitled “Grounds to believe the items sought are presently at the place to be searched”, the Affiant stated that he believed that Bahlawan was operating a “base location at 21 Shandon Avenue and unit 311, at 1470 Heron Road. He noted that:
Surveillance observations made have observed Tamara BAHLAWAN conducting drug transactions with Ahmad Al ENZI on ten occasions. Tamara BAHLAWAN was observed exiting her residence of 21 Shandon Avenue on four occasions and attending 135 Lilibet Crescent where she would pick up Ahmad AL ENZI and drug dealing would commence from her vehicle and they would attend at Unit 311 at 1470 Heron Road to conduct further drug transactions.
16It was on the basis of this information that a judge issued a search warrant for Bahlawan’s residence at 21 Shandon Avenue, where an unregistered, loaded handgun was seized.
Legal principles
17Section 11(1) of the CDSA sets out the requirements for the issuance of a search warrant under the Act:
Information for search warrant
11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (a) a controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed, (c) offence-related property, or (d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
18The information on which a warrant is based must make the theory advanced by the police to justify a search reasonably probable. Something is reasonably probable when it is “one of a range of realistic and likely or probable explanations for the credible clues that are considered”. [1]
19If an ITO relies on tips from a confidential informer, the tip must be compelling, it must come from a credible source and it must be corroborated by police investigation. These three factors are assessed on a totality of circumstances. Weakness in one area may, to some extent, be compensated by strengths in the other two factors. [2] Affidavit evidence supporting an ITO must include information that will allow an issuing judge to assess the informer’s reliability, including details unfavourable to the informer. [3]
20An issued search warrant is presumptively valid. [4] The person challenging it must show that it could not have been granted on information properly before the issuing judge and any additional evidence properly that may be filed on the review. [5]
21The reviewing judge must consider whether the affidavits before the issuing judge contained any errors, inaccuracies or misleading statements, or whether relevant information was not disclosed. Deliberate or fraudulent misstatements in the affidavits must be excised. Minor, good faith errors may or may not have to be excised, depending on whether they can be corrected through amplification evidence from the record on review and amplification is appropriate in the circumstances. [6] Evidence cannot be used to amplify unless it was available to investigators when the ITO was sworn. [7]
22The reviewing judge must ultimately determine whether the warrant could have been issued on the corrected and potentially amplified record. [8] As the Supreme Court has repeatedly emphasized, the reviewing judge should not focus on whether he or she would have issued a warrant, but whether, on the record before the authorizing judge as corrected and amplified on review, the issuing judge could have done so. [9]
Are there statements in the ITO that must be corrected?
Did the ITO misrepresent the information provided by the confidential informers?
23In my view, there are four statements in the ITO that are materially different than the information available through the source debrief.
24First, para. 3.08 states that CI#2 told his handler that Al Enzi “isn’t stupid and most likely keeps his drugs with his girl so she will wear it and not him if they get caught”. According to the source debrief, the informer actually stated that Al Enzi “is smart will prollypin [sic] stuff on the girl if he gets caught”. The statement in para. 3.08 implies that the police were told that Bahlawan was probably storing drugs for Al Enzi, when in fact the informer did nothing more than speculate about what Al Enzi would do if he were apprehended by the police. The Affiant was not cross-examined, so I cannot determine whether the statement in the ITO is based on an inference or was an attempt to mislead the issuing judge. Either way, since there is no information on the record that supports the statement in para. 3.08, it must be excised.
25Second, para. 3.02 states that CI#1 advised that Al Enzi “uses low rise buildings located at the rear of 1440 Heron Road to stash his drugs”. This misrepresents the actual tip received from CI#1, recorded in the source debrief as “Al Enzi may have a stash at 1440 Heron Road”. The language in the ITO states as a fact that Al Enzi is using a certain location to store his drugs, when the Informer was not certain if this was true. The statement in the ITO must again be excised to the extent that it implies knowledge as opposed to speculation. It should otherwise remain since CI#1’s error about the specific address on Heron Road could affect the assessment of the overall reliability of his information.
26Third, para. 3.17 of the ITO says that the police were told by CI#1 that Al Enzi “is going to Montreal on the weekend to pick up more cocaine”. CI#1 again did not express the trip to Montreal as a certainty but a possibility; according to the source debrief, he told police that Al Enzi “is/maybe going to Montreal to pick up cocaine this weekend”. The Crown argues that the language in the ITO is not really misleading because any prediction of what someone may do in the future is inherently uncertain. I agree with the defence that the statement in the ITO makes it sound as though CI#1 has better insight into Al Enzi’s plans that he himself suggested. Para. 3.17 should therefore be corrected to reflect that C1#1 told police that Al Enzi might be going to Montreal to pick up cocaine.
27Fourth, para. 3.19 states, again based on a tip from CI#1, that Al Enzi “is still keeping drugs at Tamara Bahlawan’s address on Shandon Avenue and still selling out of Nate’s place at 1470 Heron Road”. The word “still” is misleading because CI#1 had not previously indicated that drugs were being stored at the Shandon Avenue address or at “Nate’s place” or at 1470 Heron Road. The only tip that CI#1 had previously provided was that Al Enzi might have a stash at 1440 Heron Road.
28Having said this, aside from the word “still”, the information in this statement accurately reflects what CI#1 told his handler. According to the source debrief, he said that Al Enzi was “keeping drugs at Tamara’s place and at Nate’s in 1470 Heron Road”. As a result, the word “still” should be excised but the rest of the statement can stand.
29There is a fifth statement in the ITO that the defence argues is misleading. Para. 3.02 states that, according to a tip from CI#1, Al Enzi “is believed to have” a firearm. According to the source debrief, the informer said that Al Enzi “may be” in possession of a firearm. Both statements express the idea that the informer thinks Al Enzi may have a firearm but is not completely sure. The statement in the ITO is therefore not materially inaccurate.
Did the ITO mislead the issuing judge about Bahlawan’s living arrangements?
30The defence argues that the ITO incorrectly implied that Bahlawan lived alone at 21 Shandon Avenue, when in fact the police had not investigated the possibility that she shared the residence with family members or friends.
31The ITO does, in fact, refer to another resident of 21 Shandon Avenue. It discloses that the red Honda driven by Tamara Bahlawan is registered to Hassan Bahlawan at the Shandon Avenue address. The issuing judge was therefore given the information that there was at least one other person sharing Bahlawan’s residence.
32In any event, in my view the police were not required to make further inquiries about who lived at Shandon Avenue, because this was not information that would make it more or less likely that Bahlawan was using this address to store drugs or items related to trafficking.
Could the issuing judge have issued the warrant on the ITO as corrected and amplified?
Did the police investigation corroborate the confidential informers’ tips?
33Defence counsel argues that there is insufficient information on the ITO, as corrected and amplified, on which the issuing judge could have issued a search warrant for the Shandon Avenue address. He contends that the police surveillance did not corroborate the CIs’ tips and that it is impossible to otherwise assess the reliability of their information.
34The defence relies on the British Columbia Court of Appeal’s decision in R. v. Liu, 2014 BCCA 166 (“Liu”). In that case, the defendant Liu and Le were convicted of drug trafficking after drugs and cash were found at their residence during a police search. On appeal, they argued successfully that the search warrant used by police violated their Charter rights because the information in the underlying ITO could not support a reasonable belief, by the issuing judge, that drugs would be found in their home.
35In Liu, the police were provided with tips from confidential informers that an individual names Soiles was selling drugs from a location near his residence in Vancouver, and was being supplied by individuals identified during the investigation as Liu and Le. The police conducted a four-week surveillance of Soiles’ residence, during which they observed him meeting with four known “street level” drug dealers. They also observed Le and Liu visiting Soiles’ residence briefly on nine separate occasions, using a magnetic fob to get into the parking entry of his building and a key to get into his apartment.
36The Crown sought a search warrant for both Soiles’ residence and Le and Liu’s residence. It argued that a reasonable inference could be drawn that the defendants used their residence to store drugs because there was nothing to indicate that there was another possible storage location. The Court of Appeal rejected this argument, because the information in the ITO was insufficient to make it reasonably probable that drugs were located at Le and Liu’s residence.
37There are some parallels between Liu and this case. In both cases, the police observed a suspected supplier making a series of trips to a suspected drug dealer’s residence. In both cases, the Crown asked the issuing judge to infer, based on this activity, that there could be drugs or related paraphernalia at the alleged supplier’s residence.
38There are however important features of this case that distinguish it from Liu.
39First, the Court of Appeal’s determination that the information in the ITO was insufficient to ground a warrant was based largely on the absence of any surveillance evidence showing that Le and Liu travelled from their residence to Soiles’ residence. Even though the police had installed tracking devices on the defendants’ cars and conducted surveillance of their residence on numerous occasions, they were never observed going from one place to the other. As noted by the Court, there was “a gap in the information as to the appellants’ point of origin prior to their alleged delivery of drugs” to Soiles’ residence.
40In this case, by contrast, Bahlawan was seen leaving her residence on Shandon Avenue and arriving at Lilibet Crescent fifteen or twenty minutes later on five or six separate occasions. There is no gap in information about Bahlawan’s point of origin as there was in Liu.
41Second, none of the confidential informers in Liu told police that Le and Liu were storing drugs at their residence. In this case, CI#1 told the police that Al Enzi was keeping drugs at Bahlawan’s place on Shandon Avenue.
42Third, the information obtained through surveillance in Liu did not clearly corroborate the informers’ tips about Le and Liu’s involvement as suppliers. They were not observed doing anything that directly connected them to suspected drug trafficking. The case against them rested solely on the tips from confidential informers and an inference based on their access to Soiles’ apartment and their frequent visits there.
43Bahlawan’s lawyer argued that, in this case, the surveillance evidence likewise did not corroborate any tips from the confidential informers about a possible connection between Bahlawan’s residence and the origin of the drugs that the police suspected were being sold. I disagree.
44CI#2 told the police that Al Enzi was dealing from a red Honda Accord. The surveillance revealed that Bahlawan drove a red Honda Accord, from which possible drug transactions were observed being conducted, while she was in it. CI#1 told police that Al Enzi was keeping drugs at Bahlawan’s residence. The origin of each trip by Bahlawan observed by police was from her residence on Shandon Avenue. Al Enzi and Bahlawan also travelled together in the red Honda on multiple occasions to 1470 Heron Road to visit the apartment of a person with a past drug trafficking conviction, where further potential drug transactions were observed.
45On the whole, the observations during the surveillance corroborated the confidential informers’ information about Bahlawan’s involvement in the suspected drug trafficking and, specifically, the tip from CI#1 that Al Enzi was keeping drugs at Bahlawan’s residence on Shandon Avenue.
Is there sufficient information to otherwise assess the CIs’ reliability?
46Assuming that the surveillance did not corroborate the CIs’ tips, the defence argues that it is impossible to otherwise assess the reliability of their information, for two reasons: the ITO does not adequately indicate the source of their information, and information about their criminal records has not been provided to me or to defence counsel for the purpose of this application.
47Dealing first with the source of the informers’ information, para. 2.03 of the ITO states that: “The information provided by the Confidential Informers was obtained from observations made by them, and/or from conversations that they had with one or more persons being investigated and that [sic] the information was received first hand”.
48The defence argues that this language is misleading because the confidential informers did not fully vouch for the accuracy of all of the tips they provided. Some of tips were phrased as possibilities; for example, CI#1 told police that Al Enzi “may be going” to Montreal. According to the defence, this absence of certainty is incompatible with the statement at para. 2.03, which implies that the tips were based on firsthand knowledge.
49I do not accept the logic of this argument. An informer could observe something, or have a discussion with a suspect, that would lead him to form a reasonable belief without being absolutely certain. In such circumstances, the informer could only say that he believed something to be true, even though it was based on firsthand information. A tip based on belief could still be valuable and credible if, for example, it prompted investigation that confirmed it. The assessment of reliability depends on the totality of the circumstances.
50In this case, for example, CI#1 told police that Al Enzi might be going to Montreal in November 2016. This was later corroborated through surveillance that showed Al Enzi and Bahlawan going to a rental car agency, picking up a car and departing from Ottawa in the direction of Montreal.
51The Supreme Court has warned against the use of boiler-plate language in affidavits filed in support of a search warrant application. As noted by the Supreme Court, “while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the Informers”. [10]
52While para. 2.03 may contain some boilerplate language, the affidavit was from someone with firsthand knowledge of the investigation. The Affiant was the handler for CI#2, had known him for over two years and had worked with him on other successful investigations. He was not the handler for CI#1, but was familiar with his past interactions with the Ottawa police and had reviewed the notes of the detective who acted as his handler.
53Defence counsel has not provided me with any authority for the proposition that the specific source of every tip by a confidential informer must be set out in an ITO. It is in fact hard to see how this would be possible. In drafting an ITO, police take care to avoid disclosing details that would allow a defendant to identify them. In this case, the Affiant stated in the ITO that both informers believed that serious harm could come to them or their families should they be identified. If the Affiant had indicated how exactly each informer obtained each tip, this might well make it possible for the defendant to figure out who the informers were.
54With respect to the informers’ criminal records, the ITO stated that the Affiant had conducted background checks on each of the informers and, if they had a criminal record, had disclosed information about it to the issuing judge in a confidential appendix. In the case of CI#1, the Affiant provided the judge with the “essential context” of any criminal record. In the case of CI#2, the judge was provided with the criminal record itself, if any.
55In my view, it would have been preferable for the Affiant to disclose CI#1’s full criminal record to the issuing judge, or to at least explain in the ITO why he did not do so.
56A confidential informer’s criminal record is however just one element among many that a judge might consider in assessing whether their tips provide a sufficient basis for a warrant or are nothing more than “mere rumour or gossip”. These elements, as indicated earlier, include considering whether the tip provides meaningful detail, whether the informer discloses the source of or means of their knowledge and whether there are indicia of their reliability, “such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance”. [11]
57In the case at bar, the informers’ tips were compelling and they were corroborated through subsequent investigation and surveillance. The ITO includes a detailed explanation of the informers’ involvement in past investigations by the Ottawa police, and an assertion by the Affiant that neither had every provided false or misleading information. The issuing judge had the complete criminal record of CI#2 and a summary of CI#1’s record. If the informers had engaged in crimes of dishonesty, there is no basis to infer that this was not disclosed to the issuing judge.
58In my view, in the totality of the circumstances, the information provided was sufficient for the issuing judge to assess whether the information from the confidential informers was reasonably reliable.
Conclusion
59My role on this review is not to determine whether I would have issued a search warrant on the basis of the corrected record, but rather whether a warrant reasonably could have been issued.
60On the corrected ITO, the issuing judge had tips from two confidential informers that Al Enzi was selling cocaine and crack cocaine from a red Honda and from an apartment at 1470 Heron Road, unit 311, and that he was stashing drugs at the residence of his girlfriend, Bahlawan, on Shandon Avenue as well as at the unit on Heron Road. The informers had provided reliable information to the Ottawa police many times in the past. Most of their tips in this investigation were reasonably detailed and corroborated through police surveillance. Although Bahlawan was not seen handling any drugs for Al Enzi, she was seen repeatedly travelling from her residence to Al Enzi’s residence, in a red Honda, and accompanying him while he was possibly selling drugs from this car or from 1470 Heron Road, unit 311.
61As noted by the Supreme Court in Debot, it is not necessary for the police to confirm each 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”. [12]
62I conclude that a judge could reasonably have issued a search warrant for Bahlawan’s residence on the basis of the ITO, as corrected. Her application to quash the warrant and exclude the evidence seized is therefore dismissed.
Justice Sally Gomery Released: June 17, 2019
Footnotes
[1] R. v. Osman, unreported decision of the Ottawa Court of Justice on April 6, 2016 by Justice David Paciocco, as he then was, at para. 47. [2] R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (CA) (“Crevier”), at para. 67; R. v. Debot, , [1989] 2 S.C.R. 1140 (“Debot”), at para. 53. [3] Crevier, at para. 68. [4] R. v. Garofoli, , [1990] 2 S.C.R. 1421, at p. 1452; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (ONCA), at para. 45. [5] R. v. Beauchamp, 2015 ONCA 260 (“Beauchamp”), at para. 85. [6] Araujo, at paras. 56 to 59. [7] R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (ONCA), at para. 85. [8] Araujo, para. 57. [9] Beauchamp, at para. 87; Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (“Araujo”), at para. 52. [10] Araujo, at para. 48. [11] R. v. Debot (1986), , 30 C.C.C. (3d) 207, at pp. 218-19. [12] Debot, at para. 63.