Court File and Parties
Superior Court of Justice - Ontario
Re: R. v. Jamie Weber and Annamarie Weber
Before: Justice I.F. Leach
Counsel: Frances Brennan, for the Crown Amy Robern, for the accused Jamie Weber Michael Fair, for the accused Annamarie Weber1
Heard: February 21 and 22, 2019, and by way of further written submissions2
Endorsement
Introduction
1Jamie Weber, one of the two accused persons in this proceeding, is charged with four offences pursuant to the Controlled Drugs and Substances Act, S.C. 1998, c.19, (the “CDSA”). In particular, he is charged with the following:
a. one count of possession of methamphetamine for the purpose of trafficking, contrary to s.5(2) of the CDSA;
b. one count of possession of cannabis marijuana for the purpose of trafficking, contrary to s.5(2) of the CDSA;
c. one count of possession of buprenorphine (suboxone) for the purpose of trafficking, contrary to s.5(2) of the CDSA; and
d. one count of possessing cannabis marijuana, contrary to s.4(1) of the CDSA.
2The charges stem from evidence discovered during police execution of a search warrant, issued pursuant to section 11 of the CDSA, authorizing a police search of “a one storey white residence, a green detached shed, a brown detached shed, a white mobile trailer and any vehicles (able or disabled) located on the property located at the address of 4317 Road 119, Township of Perth East, Perth County, in the Province of Ontario”.
3The said warrant was issued on March 8, 2017, and was executed the following day.
4By way of a proper pre-trial application, Mr Weber seeks:
i. a finding that the relevant search warrant should not have been issued, such that the resulting search, carried out on March 9, 2017, should be regarded in law as warrantless and unreasonable;
ii. a finding that there accordingly has been a resulting contravention of the rights guaranteed to Mr Weber by section 8 of the Canadian Charter of Rights and Freedoms, (“the Charter”), which provides that “Everyone has the right to be secure against unreasonable search and seizure”;
iii. a finding that there also has been a resulting contravention of the right guaranteed to Mr Weber by section 9 of the Charter, which provides that “everyone has the right not to be arbitrarily detained or imprisoned”;3 and
iv. a ruling excluding, at trial, pursuant to s.24(2) of the Charter, evidence seized as a result of the alleged contraventions of Mr Weber’s aforesaid Charter rights.
5In that regard, Mr Weber contends that the sworn “Information To Obtain a Warrant to Search” (or “ITO”) used by the police to obtain the relevant search warrant did not contain, (at least in the redacted form now relied upon by the Crown4, and after excising information defence counsel seeks to characterize as “dated” and/or “misleading”), information sufficient to justify the warrant being issued; i.e., information sufficient to raise a credibly-based probability that the proposed search would yield evidence of possession and/or trafficking in controlled substances as alleged.
6Mr Weber says the resulting search warrant accordingly was invalid, that the resulting search was presumptively unreasonable, that his arrest based on evidence discovered during that search accordingly was arbitrary and unlawful, and that evidence obtained via the search should be excluded at trial.
7In short, the application brought by Mr Weber essentially was grounded in an alleged breach of Mr Weber’s section 8 Charter rights, with the existence of any consequential section 9 Charter breaching turning entirely on whether a section 8 breach had been established.5
8The Crown contends that, in its redacted form, and/or with permissible amplification evidence, the relevant ITO contained more than sufficient current and reliable evidence that might reasonably be believed, on the basis of which the search warrant authorization could have issued.
9The Crown accordingly submits that, as the relevant searching was conducted pursuant to a valid warrant, it was not unreasonable, there was no breach of the rights guaranteed to Mr Weber by section 8 of the Charter, and that Mr Weber’s ensuing arrest, based on evidence lawfully discovered through that properly warranted search, accordingly gave rise to no breach of the rights guaranteed to Mr Weber by section 9 of the Charter.
10In her initial factum and concluding written submissions, Crown counsel has indicated that, if the court finds the relevant warrant properly could not have issued, (effectively rendering the initial police search of the property warrantless), with a corresponding breach of section 8 of the Charter and a consequential breach of section 9 of the Charter, evidence found as a result of the “warrantless” and therefore unreasonable search should be excluded pursuant to s.24(2) of the Charter.
Sources of evidence
11As noted above, the hearing of Mr Weber’s pretrial application proceeded simultaneously with the hearing of a separate application brought in R. v. Fuller, which involved overlapping witness testimony and documentation, but focused on different issues.
12By way of overview, the evidence presented included the following:
a. the ITO sworn by Detective Constable (“DC”) David Lewis, in the redacted form originally disclosed by the Crown to defence counsel, (with redactions made to protect confidential informant privilege)6, supplemented by another version of page 9 of the ITO, supplied by the Crown, containing fewer redactions – as the police had confirmed that assertion of confidential informant privilege over the additionally revealed information was no longer necessary;
b. the search warrant drafted by DC Lewis and issued by the reviewing justice on March 8, 2017;
c. the sworn testimony of DC Lewis7, through which the following additional exhibits were introduced:
i. a copy of the “GeoWarehouse Report” referred to in the ITO;
ii. a three page extract from the “Operations Plan” prepared by DC Lewis, and reviewed and signed by all officers participating in the warrant execution, before the execution took place;
iii. coloured copies of two of the large photographs from that “Operations Plan” extract;
iv. additional street and overhead views of the relevant property, put to DC Lewis by counsel for Mr Fuller, and which DC Lewis acknowledged to be an accurate depiction of the property in March of 2017, at least insofar as the locations of the relevant buildings were concerned; and
v. a summary of the criminal record of William Sneddon as of September 7, 2017, as set forth in an extract from a pre-sentence report prepared in relation to Mr Sneddon;8
d. the sworn testimony of Officer Charlie Rau, another member of the OPP who participated in execution of the relevant search warrant;
e. the sworn testimony of Michelle Little, a civilian witness called by counsel for Mr Weber; and
f. the sworn testimony of John Stacey, another civilian witness called by counsel for Mr Weber.
13In deciding Mr Weber’s application, I obviously have focused on the evidence relating to his application, and the issues raised therein.
Background
14By way of further background, at the time of swearing the relevant ITO in support of the aforesaid warrant application, DC Lewis was an experienced drug enforcement officer. Without limiting the generality of the foregoing, as noted in the ITO:
At the time of swearing the document, he had been a police officer for approximately 15½ years, more than five of which had been spent on secondment to the Drug Enforcement Section/Unit of the Ontario Provincial Police (“OPP”), where he dealt with drug related offences of varying levels.
In addition to his general police training, and training related to general investigative techniques, he had received extensive additional training focused on drug-related matters, including drug resources, drug awareness, drug investigation techniques, investigation of clandestine drug laboratories, surveillance techniques and tactical entry.
Throughout the course of his years spent on patrol duties and as a drug enforcement officer, he had gained additional practical experience and insight into drug related matters from interviewing persons involved in illegal subcultures, speaking with accused persons, speaking with confidential informants, and investigating criminal and CDSA matters, including the handling of exhibits and the taking of informal readings.
Over the course of his police career, he had been involved in the preparation and execution of numerous Criminal and CDSA search warrants leading to criminal and CDSA charges and convictions.
15In his sworn ITO, Detective Lewis outlined information and reasoning which, in his view collectively formed reasonable and probable grounds to believe that the applicant, Annamarie Weber and Paul Fuller had committed and were committing an offence contrary to s.5(2) of the CDSA, (i.e., possession of methamphetamine for the purpose of trafficking), and that the proposed search would lead to the finding of evidence in that regard. That information and reasoning, (as set forth in the redacted form of the ITO, including the less redacted form of page 9 of the ITO disclosed before hearing of the application), included the following:
On May 16, 2016, members of the Stratford Police Service and the OPP, including DC Lewis, attended at 4317 Road 119, in the Township of Perth East, to participate in execution of a CDSA search warrant. The warrant was in relation to Paul Fuller, (who was believed to be in possession of methamphetamine and hydromorphone for the purpose of trafficking), and authorized a police search restricted to the “south shop” or brown shed, a trailer, and all disabled and able vehicles located “on the property at 4317 Road 119, Perth East, Ontario”. In the result:
when the police arrived to execute the warrant, Jamie Weber and Paul Fuller were together in the “green shed” on the property;
while Jamie Weber was spoken to regarding the police investigation, his residence and “green shop” on the property were not searched;
the police nevertheless did locate and seize approximately 10 grams of methamphetamine from inside the “south shop” or “brown shed” on the property; and
Paul Fuller, Bonnie DeWitte and Scott Vanstone all were arrested and charged with possession of methamphetamine for the purpose of trafficking.
On September 16, 2016, the OPP, (and Provincial Constable James Choi in particular), received a telephone call from an unspecified neighbour of Jamie Weber, complaining of an overwhelming chemical smell coming from 4317 Road 119, expressing concerns of possible drug production and suspected drug trafficking at the address, and indicating a suspicion that Paul Fuller was involved due to his recent arrest following execution of a search warrant.
On an unspecified date in December of 2016, DC Lewis received information directly from a “confidential human source” or “confidential informant”, (whom DC Lewis identified as “CS #1”), relating to Jamie Weber selling methamphetamine from his property located at 4317 Road 119, in the Township of Perth East, Perth County, Ontario, and indicating that Paul Fuller also was involved in purchasing and delivering methamphetamine. In that regard:
CS#1 was registered as an informant with the OPP, and was entrenched in the drug subculture. In particular, he or she was a user of methamphetamine and marijuana, associated with other addicts, had heard conversations relating to drug use and trafficking, and had witnessed drug sales and activities consistent with drug trafficking.
Although CS#1 had a criminal record, it did not include any convictions for crimes of deceit or dishonesty.
DC Lewis regarded CS#1 as a “past proven source”. In particular, CS#1 previously had provided police with information that had been relied upon, and supported grounds for an arrest and search warrant.
Although willing to provide information for investigative purposes, CS#1 was not willing to come forward to testify in court proceedings owing to fear of reprisals.
In relation to Jamie Weber and Paul Fuller, information provided by CS#1 directly to DC Lewis in December of 2016 included the following:
CS#1 possessed the provided information because he or she associated with Jamie Weber and several other methamphetamine users;
Jamie Weber was dealing methamphetamine from his “shop” and house;
Jamie Weber was getting his supply of methamphetamine from Paul Fuller, who was still living in the “shop”;
Paul Fuller was dating a girl named “Shay”;
CS#1 was able to provide DC Lewis with specific names of people buying from Jamie Weber - although the details in that regard have been redacted in disclosed forms of the ITO;
Jamie Weber would “buy from and deal with” Bill Sneddon;
a specified customer, (whose name was redacted from the disclosed forms of the ITO), usually would buy “a quarter ounce at a time” from Jamie Weber; and
Jamie Weber usually would “have a half ounce” on his person, in his coat.
On a date in January of 2017, (specified in the original ITO but redacted in the disclosed forms of the ITO), DC Lewis received the following further information directly from CS#1:
CS#1 was continuing to associate with Jamie Weber and several other methamphetamine users.
Jamie Weber was “dealing meth every day”, and “dealing from the green shed”; and
Jamie Weber was being supplied by Paul Fuller, who also was doing “drops”, or drug deliveries, but otherwise would not have drugs “on” him.
On a date in February of 2017, (specified in the original ITO but redacted in the disclosed forms of the ITO), DC Lewis received the following further information from CS#1;
CS#1 was continuing to associate with Jamie Weber and several other methamphetamine users;
Jamie Weber was still dealing meth, with “quite a few people”, who were going to him for meth;
Jamie Weber was selling “out of his green shed”; and
Paul Fuller was “still living out on the property”, was sometimes “in the brown shed”, and “will go and pick up meth supply for Jamie Weber”.
Also in February of 2017, (on a date specified in the original ITO but redacted in the disclosed forms of the ITO), DC Lewis received information directly from another confidential human source, (whom DC Lewis identified as “CS#2”), relating to Jamie Weber selling methamphetamine from his property located at 4317 Road 119, in the Township of Perth East, Perth County, Ontario, and indicating that Paul Fuller also was involved in purchasing and delivering methamphetamine. In that regard:
CS#2 was registered as an informant with the OPP, and was entrenched in the drug subculture. In particular, he or she was a user of methamphetamine, associated with other addicts, and had heard conversations relating to drug use and trafficking.
Although CS#2 had a criminal record, it did not include any convictions for crimes of deceit or dishonesty.
DC Lewis regarded CS#2 as a “past proven source”. In particular, CS#2 previously had provided police with information that had been relied upon, and supported grounds for a search warrant.
Although willing to provide information for investigative purposes, CS#2 was not willing to come forward to testify in court proceedings owing to fear of reprisals.
In relation to Jamie Weber and Paul Fuller, information provided by CS#2 directly to DC Lewis in February of 2017 included the following:
CS#2 possessed the provided information because he or she associated with Jamie Weber;
CS#2 had attended at 4317 Road 119;
Jamie Weber was selling methamphetamine from his residence and from the “shop” or “shed”;
Paul Fuller was living “at Jamie Weber’s place”, in “the brown shop”; and
Paul Fuller would get his methamphetamine from Jamie Weber.
On February 7, 2017, DC Lewis also received information from DC Weyers, (a member of the Stratford Police Service), concerning a traffic stop and arrest of a named male and female couple, (Travis Wand and Marissa Radstake), the previous day. In particular, after Stratford Police had observed the couple depart from 4317 Road 119, in the Township of Perth East, and without the couple then having stopped anywhere else, the couple had been stopped by police and found to be in possession of approximately 3.5 grams of methamphetamine in a fresh drug bag, leading to each being charged with possession of a controlled substance. Following up on that information provided by DC Weyers, DC Lewis conducted inquiries via the Canadian Police Information Centre (or “CPIC”) database, the results of which confirmed the charges described by DC Weyers, and that Travis Wand and Marissa Radstake each had criminal records, including Radstake having been placed on probation, (starting in October of 2016), for possession of controlled substances including methamphetamine and fentanyl. In the view of DC Lewis, the circumstances warranted a reasonable inference that the methamphetamine found in the possession of Wand and Radstake on February 6, 2017, had been purchased at Jamie Weber’s address at 4317 Road 119, in the Township of Perth East.
Having received the above information, DC Lewis also conducted a number of further searches using various databases available to the police, and the nature of which were described in detail in the ITO. Those searches, and their results, included the following:
A Records Management System (or “RMS”) query regarding Jamie Weber revealed or confirmed the following:
that Mr Weber’s current address was listed as 431 Road 119, Perth East Twp”;
the “drug information occurrence” report relating to the telephone complaint from an unspecified neighbour of Mr Weber on September 19, 2016, described above; and
the police occurrence report relating to the aforesaid execution of a search warrant, on May 16, 2016, relating to the south shop or “brown shed”, trailer and disabled or able vehicles at 4317 Road 119, Perth East, Ontario.
A Ministry of Transportation for Ontario (or “MTO”) query relating to Jamie Weber confirmed that he had a valid driver’s licence with a listed address of “4317 Rd 119, Stratford R1, ON, N5A 6S2”.
A CPIC query relating to Jamie Weber revealed that Mr Weber had a criminal record, including a conviction, from July of 2002, for possessing a controlled substance for the purpose of trafficking.
An RMS query relating to 4317 Road 119, Township of Perth East, Perth County, showed that Annamarie Weber and Paul Fuller also had associations with that address. DC Lewis believed Annamarie Weber to be Jamie Weber’s wife, and that Paul Fuller was a person known to frequent and reside on the property.
CPIC and MTO queries relating to Annamarie Weber revealed that she had a criminal record, (albeit without any drug-related convictions), and a valid driver’s licence with a listed address of “L45 C3 NEH. Stratford R1, ON, N5A 6S2”, which DC Lewis believed to be another reference to the property also known as 4317 Road 119, Township of Perth East, Perth County.
CPIC and MTO queries relating to Paul Fuller revealed:
that he had a criminal record, including two prior convictions from August of 2004 and one from February of 2007 for possession of controlled substances for the purpose of trafficking contrary to s.5(2) of the CDSA, with at least one of those convictions relating to Schedule 1 substance;
that, as a result of the aforesaid search warrant execution on May 16, 2016, Mr Fuller was facing additional charges for further alleged contraventions of s.4(1) and 5(2) of the CDSA; and
that Mr Fuller’s valid driver’s licence still carried a listed address of “419 Loverage Road, London, Ontario, N5W 4T6”.
A “property detail report” obtained via “GeoWarehouse”, (providing access to “Ontario’s Electronic Land Registration”), relating to the address of “4317, Road 119, Township of Perth, Perth County”, indicated that the property was owned by Jamie Timothy Weber, and that its legal description was “Pt Lot 45, Concession 3 (North Easthope) R362375 @ Part 1, 44R3670, Perth East”.9
In his ITO, DC Lewis also indicated that the methods he had used to confirm the relevant address also included “contact with the Perth East Municipal Office”.
Possessed of the information outlined above, DC Lewis decided that the situation merited further investigation in the form of surveillance, in relation to the relevant property; a location with which DC Lewis already was familiar, having attended the location in the past - including his already-noted participation in execution of a CDSA search warrant, (described above), in May of 2016. In that regard, he was aware:
that buildings on the property included a white one story residence and two steel sheds;
that one of the steel sheds was green in colour, and located to the northeast of the white residence;
that the other steel shed was brown in colour, and located to the southeast of the white residence; and
that there were two connecting driveways leading to the buildings on the property.
DC Lewis personally engaged in such surveillance, (either on his own or with the assistance of DC Vicky McGough), on the following dates:
Friday, February 17, 2017, on his own;
Thursday, February 23, 2017, assisted by DC McGough;
Friday, February 24, 2017, assisted by DC McGough;
Tuesday, March 7, 2017, on his own; and
Wednesday, March 8, 2017, on his own.
In his sworn ITO, DC Lewis provided a much more detailed account of the various surveillance observations he and/or DC McGough made than I will reiterate in these reasons; e.g., insofar as he provided extensive details concerning the precise times of vehicle and pedestrian arrivals and/or departures at the property, specific vehicle types and licence plate numbers where those could be ascertained, and the specific identity of individuals seen at the property when known. I have reviewed and considered all of that sworn information in detail, and the following comments are merely intended to highlight and/or summarize some of what I consider to be the more relevant developments outlined in the ITO.
On February 17, 2017, DC Lewis travelled past “the address of 4317 Road 119, Township of Perth East, Perth County”, before returning to carry out further observations of the property between 2:55pm and 3:40pm. In that regard:
While travelling past the property at 11:30am, DC Lewis noted:
that the relevant property had one driveway, which ran in a “horseshoe fashion” from an end closest to the residence, between the house and the green shed, and behind the house towards the brown shed, before connecting back to the roadway, “all on the same property”;
that there was a green 911 emergency sign at the end of the driveway closest to the residence, marked “4317”;
that there was a white “Mallard” mobile trailer parked at the rear of the property, to the north of the brown shed;
that there were no vehicles parked near the house; and
that there were at least four vehicles, (a dark coloured pickup truck, a grey Jeep SUV, a red older model sports car, and a burgundy Ford), parked near the brown shed.
Additional observations made between 2:55pm and 3:40pm, (in respect of which the detective noted additional specific times in the ITO), included the following:
In addition to a black Jeep Liberty vehicle registered to Annabelle Weber, (parked between the residence/house and the green shed), at least three other vehicles, not registered to the Webers or Mr Fuller, were seen travelling from and/or to the property during that 45 minute period. They included:
a silver Honda SUV vehicle registered to Michelle Little, (who did not have a criminal record, according to a CPIC query made by DC Lewis), which was present at the property when surveillance began, (“parked between the house and the shed”), and departed 40 minutes later;
a red Ford truck registered to John Stacey, (who did not have a criminal record, according to a CPIC query made by DC Lewis), which arrived at the property being driven by an unknown male, (who attended inside the green shed), and departed 12 minutes later; and
a dark Pontiac vehicle registered to Craig Sommerville, (who, according to CPIC, RMS and PIP or “Police Information Portal” queries made by DC Lewis, did not have a criminal record, according to a CPIC query, but was stopped by the Stratford Police in July of 2016, at which time his female passenger was arrested and found to be in possession of 28 grams of methamphetamine), which arrived at the property and left 25 minutes later, after its male driver had attended inside the green shed.
During the above observations, Jamie Weber also was seen exiting and entering the green shed, and speaking with a male in the property’s driveway.
On February 23, 2017, DC Lewis, assisted by DC McGough, carried out further surveillance “in the area of 4317 Road 119, Township of Perth East, Perth County”, between 1:30pm and 4:05pm. Additional observations made during that period of 2 hours and 35 minutes included the following:
DC Lewis noticed an object hanging under the roof of the back deck to the residence. The size, placement and black plastic electronic appearance led DC Lewis to “suspect” that the object was a video surveillance camera. While acknowledging that such cameras were a security measure often utilized by business owners to protect themselves from property theft and damage, DC Lewis also noted that the relevant property was not a business setting, and in his experience those engaged in drug trafficking used such cameras for control, knowledge and identification purposes; e.g., to deter close proximity police observations, and to provide drug dealers with notice of police arrival and a corresponding opportunity to dispose of evidence in such circumstances.
The “overhead” door to the green shed was open.
Jamie Weber was seen entering and exiting the green shed a number of times, including two walks back and forth to the residence and one walk towards the rear of the green shed.
An unknown female arrived at the property on foot, before she then walked to and entered the brown shed. Approximately 20 minutes later, she and Mr Fuller exited the brown shed, before they walked to and entered the green shed. Approximately 15 minutes later, Mr Fuller and the female were seen driving away from the property in a vehicle registered to Mr Fuller, which had been seen parked in front of brown shed.
The black Jeep Liberty vehicle registered to Annamarie Weber, (parked between the residence and the green shed), a red Hyundai vehicle registered to Cassandra Wright, (which was parked in the bay of the green shed), and three other vehicles, (the grey Jeep SUV, red older model sports car and burgundy Ford vehicles noted above, still parked in front of the brown shed), remained stationary on the property throughout the period of surveillance.
In addition to the vehicles already mentioned, at least four other vehicles arrived at and departed from the property within that particular afternoon surveillance period. In that regard:
A black Ford Focus vehicle arrived and parked in front of the green shed, and departed 97 minutes later. On departure, the vehicle was being driven by a female, with a male passenger, Jerome Morden, who was known to DC Lewis from past police involvement. A CPIC query indicated that Mr Morden had a criminal record, (including two 2002 convictions for possession of a Schedule 1 controlled substance), and currently was facing a further charge of possession of a controlled substance.
A second vehicle, (a silver or grey SUV), driven by a lone male arrived at the property, and departed five minutes later. DC Lewis could not see if the male attended particular buildings on the property; e.g., the residence or green shed.
A third vehicle, (a white Dodge Journey SUV), operated by a lone driver entered the driveway, pulled into the driveway area in front of the green shed, turned around, and departed less than a minute later.
A fourth vehicle, (a blue Pontiac vehicle), arrived, parked in the area behind the residence, and departed 12 minutes later.
A fifth vehicle, (a silver Chevrolet Cavalier), arrived in the driveway of the property 24 minutes before the period of surveillance ended, and was still there when the officers departed.
On February 24, 2017, DC Lewis, assisted by DC McGough, carried out further surveillance “in the area of 4317 Road 119, Township of Perth East, Perth County”, between 11:50am and 1:20pm. Additional observations made during that 90 minute period included the following:
When the officers began their observations, there were no vehicles parked near the residence/house. However, there were four vehicles, (including the blue Jeep Cherokee vehicle owned and operated by Mr Fuller, and the three other vehicles noted above – i.e., a grey Jeep Cherokee, a red older model sports car and a burgundy Ford - in the same positions observed on February 17 and 23), parked in front of the brown shed.
Approximately 10 minutes after their arrival, the Jeep Liberty vehicle owned by Mrs Weber returned to the property and parked between the residence/house and the green shed, where it would remain for 65 minutes before it drove away again.
During the 90 minute surveillance period, the officers observed four other vehicles arrive at and depart from the property. In that regard:
One vehicle, (an older model Brown Ford), arrived at the same time as Mrs Weber’s vehicle, parked at the rear of the residence, and departed approximately 51 minutes later, being operated by a lone male. The vehicle was registered to Korey Patton, who, (according to a CPIC query run by DC Lewis), had a criminal record for violence but no drug-related convictions.
A second vehicle, (a black Dodge pickup), driven by a lone male arrived and parked at the brown shed, where the male then entered. The male exited the brown shed, re-entered the vehicle, and drove away 16 minutes later. The vehicle was registered to Dale Ruby who was known to DC Lewis and, (according to a CPIC query run by DC Lewis), had a criminal record including a 1991 conviction for trafficking in a narcotic.
A third vehicle, (a silver SUV), arrived, parked between the house and the green shed, and departed 13 minutes later, at the same time as the vehicle owned by Mrs Weber. The police were not able to make observations of the vehicle’s plate number or operator.
A fourth vehicle, (a burgundy Chevrolet), arrived, and parked in front of the brown shed. At least one and possibly more occupants of the vehicle entered the brown shed. The vehicle departed approximately 8 minutes later. Immediately after leaving the property, the vehicle was seen travelling westbound on Road 119 for a short distance before it then turned around in a private driveway to travel in the opposite direction. In the view of DC Lewis and DC McGough, the maneuver was suspicious in nature and suggested possible police detection and/or countersurveillance strategies. (In the experience of DC Lewis, such paranoid behaviour – by those distributing drugs and those who had just purchased drugs - was typical in methamphetamine-related investigations.) Shortly thereafter, the officers discontinued their surveillance in an effort to prevent their investigation from being compromised.
On March 7, 2017, DC Lewis carried out further surveillance “in the area of 4317 Road 119, Township of Perth East, Perth County”, between 1:30pm and 5:05pm. Additional observations made during that 3 hour and 35 minute period included the following:
The grey Jeep Cherokee, red older model sports car and burgundy Ford, (observed during earlier surveillance), remained parked in their consistent positions in front of the brown shed.
The Jeep Liberty vehicle registered to Mrs Weber initially was at the property, parked between the house and the green shed. It departed for 1 hour and 47 minutes, before returning to park in the same place.
The silver Honda SUV registered to Michelle Little initially was parked in front of the green shed. However, it was seen coming and going from the location a number of times that afternoon. In particular:
Approximately 33 minutes after the officers began the surveillance, the vehicle left the property at the same time as the Jeep Liberty owned by Ms Weber.
The vehicle nevertheless returned on its own 12 minutes later and parked again in front of the green shed, at which time its female driver exited the vehicle and walked to the location of a door in the northeast corner of the green shed.
Five minutes later, the female driver exited the green shed, entered the vehicle, and drove away again.
Forty minutes later, the vehicle returned, and this time parked at the back of the residence/house.
Thirty minutes later, the vehicle drove away again.
The burgundy Ford vehicle, (in respect of which DC Lewis could not obtain a licence plate), was driven away from the property, apparently by a lone occupant/driver.
The blue Jeep Cherokee vehicle owned by Mr Fuller returned to the location, (approximately 2 hours and 11 minutes after DC Lewis began that afternoon’s surveillance), and once again parked in front of the brown shed.
During that afternoon’s surveillance, DC Lewis observed at least six other vehicles coming and/or going from the property. In that regard:
When DC Lewis began his observations, a “heavier set white male” was seen walking away from a doorway of the brown shed and getting into the passenger seat of an orange Dodge Journey vehicle parked in front of the brown shed. It drove away approximately five minutes later.
When DC Lewis arrived, there also was a small white pickup truck, with a cap and business names on the side, parked in front of the green shed. It drove away approximately 30 minutes later.
A white work van, registered to a numbered company and marked “Advanced Air”, arrived and parked beside the house, following which a male driver appeared to begin working in the house, making trips back and forth to the van.
A silver SUV, (different from the one registered to Michelle Little), arrived, parked in front of the green shed, and departed approximately 40 minutes later.
A white Dodge pick up truck arrived, parked in front of the green shed, and departed approximately 18 minutes later.
A black Ford Focus registered to Jerome Morden, (i.e., the same Ford Focus seen at the property on February 23, 2017), arrived at the property and parked in front of the green shed. Approximately 30 minutes later, it had been moved to a parked location in front of the brown shed.
DC Lewis also observed a male, whom the detective knew to be Steven Fenwick, arrive at the property on a bicycle. A CPIC query by DC Lewis confirmed that, in addition to current outstanding charges, Mr Fenwick had a lengthy criminal record that included a conviction for possessing a restricted weapon and ammunition, as well as a 2009 conviction for possessing a controlled substance for the purpose of trafficking.
During the same period of surveillance, Jamie Weber was seen on the property near the green shed, (e.g., entering the building as the female driver of Michelle Little’s vehicle was walking towards a different entrance to that building), and Paul Fuller was seen walking from the brown shed into the green shed.
On March 8, 2017, DC Lewis carried out further surveillance “in the area of 4317 Road 119, Township of Perth East, Perth County”, between 10:20am and 12:42pm. Additional observations made during that 2 hour and 22 minute period included the following observations of further vehicles coming and/or going from the location. Those observations included the following:
When DC Lewis first observed the property that morning, at 10:20am, he saw a silver 2004 Jeep Cherokee vehicle - already familiar to DC Lewis as a vehicle owed by William (“Bill”) Anderson Sneddon, parked between the house and the green shed. The vehicle left the property at 10:42am, returned to the property at 12:36pm, and departed again, six minutes later, at 12:42pm. A CPIC query by DC Lewis confirmed that Mr Sneddon had a lengthy criminal record, was currently on probation for possession of a controlled substance, and was facing outstanding charges of possessing methamphetamine for the purpose of trafficking as well as two counts of possessing a controlled substance.
At 10:40am, a small white truck arrived.
At 11:15am, a red Ford vehicle arrived and parked by the brown shed.
At 12:15pm, Mr Fuller was seen driving away from the property in his blue Jeep Cherokee, with a female passenger, but the vehicle returned to the property 15 minutes later, and parked at the brown shed.
As noted above, DC Lewis applied for a CDSA warrant later that day, (i.e., on March 8, 2017), relying on the information set forth in his sworn ITO, and setting out what he felt were ample reasons for reasonably believing that Mr Weber and Mr Fuller were in possession of methamphetamine for the purpose of trafficking, and that evidence of such an offence, (e.g., methamphetamine, together with other indicia of trafficking such as cutting agents, weighing instruments such as scales, packaging material, currency, mobile phones and debt lists), would be found at the relevant location. Without limiting the generality of the foregoing, DC Lewis explained his belief:
that the information supplied by his two confidential informants was compelling and credible;
that the information supplied by the informants had been supported and corroborated in numerous respects by the officer’s own independent knowledge, information supplied by other officers, data base inquiries and surveillance observations; and
that, based on his experience, the traffic flow observed at the relevant rural location, (e.g., having regard to the number of visitors, many of whom made visits of short duration, many of whom had past drug-related convictions and/or outstanding drug-related charges, and some of whom engaged in movements suggesting countersurveillance efforts), together with the apparent presence of a surveillance camera, and the use of “out buildings”, were all consistent with and indicative of drug trafficking.
16In his sworn ITO, DC Lewis also provided extended reasons why he also was requesting a warrant that would permit police to enter areas covered by the warrant without prior announcement. In that regard:
DC Lewis noted concerns for officer safety, having regard to such matters as the frequency with which those involved in drug trafficking kept weapons to protect themselves from others in the drug community, and the fact that a number of visitors to the relevant property to be searched had criminal records including crimes of violence; and
DC Lewis noted a concern that those involved in drug trafficking, confronted with the approach of police intent on executing a warrant, would attempt to destroy evidence; e.g., by flushing narcotics down toilets to prevent their discovery by approaching police, or by rapidly consuming such drugs – with the associated risk of overdose.
17It is not disputed that the search warrant obtained on March 8, 2017, (which permitted unannounced entry by police into areas covered by the warrant), was executed by the police the following day; i.e., on March 9, 2017.
18Nor was it disputed that, as a result of the search, the police located and seized numerous items from a bedroom and “mudroom” of the residence/house, and from the green shed and brown shed. In particular, evidence discovered by the police, (and which Mr Weber’s application effectively seeks to exclude), included the following:
In one of the bedrooms of the residence/house, officers located Canadian currency, ($990.00 in bills and $1300.00 in rolled coins); four separate baggies of methamphetamine, (respectively weighing 22grams, 2.7 grams, 0.1 grams and 0.5 grams); unused packaging; and a functioning digital scale with methamphetamine residue.
In the mudroom of the residence/house, officer located, in a coat pocket, two baggies of methamphetamine respectively containing 28.24 and 2.36 grams of methamphetamine.
In the green shed, officers located a glass pipe containing drug residue; an operable, black “Infyniti” (sic) digital scale; a postal scale; packaging material, (in the form of clear plastic baggies); a baggie containing 1.38 grams of methamphetamine; and an imitation firearm.
In the brown shed, officers located 10.27 grams of methamphetamine; two black functioning digital scales; packaging material, (in the form of baggies); a suspected “debt list”; a glass pipe with methamphetamine residue; and three different models of pellet pistols.
19The applicant, Mr Weber, served his notice of application herein on or about April 30, 2018.
Additional evidence
20As noted above, the application was heard, in part, on February 21 and 22, 2019. At that time, I was presented with considerable additional oral testimony and documentary evidence.
21That additional evidence was tendered, in relation to Mr Weber’s application, for the purpose of addressing possible excisions and amplifications of the information included in the ITO; possibilities which will be addressed in the course of my assessment below.
22I have considered all of that additional evidence, which consumed two complete days of hearing.
23Frankly, in my view, (and as mentioned above), not all of that additional evidence is relevant to the issues raised by Mr Weber in his application. In particular:
a. some of it relates to matters which I think inappropriate to consider as “amplification” evidence in relation to Mr Weber’s application;
b. some of it relates to matters relevant to the application brought by Mr Fuller, which was heard simultaneously with Mr Weber’s applications in the manner noted above; and
c. some of it relates to efforts, (unsuccessful in my opinion), to suggest that information provided by DC Lewis in the ITO was misleading and/or inaccurate.
24Preferring to err on the side of caution, I nevertheless will provide a fulsome summary of that additional evidence, in an effort to outline the sort of additional evidence that was presented for consideration.
25For present purposes, I think it sufficient to note that it included the following:
In cross-examination concerning the two confidential informants upon whom he had relied, DC Lewis confirmed and/or clarified:
that he was the “co-handler” for CS#1, and the “handler” for CS#2, and received the described information from those confidential informants personally;
that CS#1 and CS#2 each had received monetary consideration for the information they had supplied;
that both confidential informants, as a precondition to being formally “signed on” as a registered numbered informant for the OPP, nevertheless also had been briefed orally and in writing about the nature of their role, (e.g., as an informant rather than a police agent), and about the serious consequences or “repercussions” that would follow, (e.g., termination of their relationship with the OPP and exposure to investigation and possible prosecution on criminal charges of mischief and/or provision of false information to police officers), if it was ever determined that either informant had provided information known to be false or misleading;10
that, in relation to CS#1:
as noted in the unredacted version of the ITO, at the time CS#1 provided his or her information relied upon by DC Lewis, CS#1 previously had provided information leading to one arrest and one search warrant, in relation to the same accused but in two separate cases;
precise details of the criminal record for CS#1 had been provided to the issuing justice within the ITO, but had been redacted in the disclosed copy of the ITO, and the officer was unable to disclose further particulars of the record, (i.e., as to whether it did or did not include convictions for particular offences such as theft, possession of stolen property or fraud), as it was thought that might tend to disclose the informant’s identity;
CS#1 provided no information, set forth in either the redacted or unredacted forms of the ITO, in relation to the pricing or packaging of drugs said to have been sold, but did make reference, described in the unredacted form of the ITO, to the weights of methamphetamine being sold; and
in December of 2016, DC Lewis was personally shown the relevant property by CS#1, who drove past the property with DC Lewis while pointing out the relevant buildings to the officer;
that, in relation to CS#2:
it had also been disclosed to the reviewing justice, in the unredacted version of the ITO, that the search warrant obtained, as a result of information supplied by CS#2, had led in turn to multiple arrests, in turn leading to one conviction, and to another charge still before the courts at the time of the warrant application;
precise details of the criminal record for CS#2 had been provided to the issuing justice within the original ITO, but had been redacted in the disclosed copy of the ITO, and the officer was unable to disclose further particulars of the record, (i.e., as to whether it did or did not include convictions for particular offences such as theft, possession of stolen property or fraud), as it was thought that might tend to disclose the informant’s identity;
CS#2 provided no information, set forth in either the redacted or unredacted forms of the ITO, in relation to the pricing or packaging of drugs said to have been sold, but did make reference, described in the unredacted form of the ITO, to the weights of drugs being sold;
while the unredacted form of the ITO confirmed that CS#2 had provided indicated information about specific locations on the property where drugs would be located, and the specific names of “customers” to whom drugs were being sold, the specifics of such information were redacted in the disclosed form of the ITO to avoid disclosure of the informant’s identity; and
in February of 2017, DC Lewis was personally shown the relevant property by CS#2, who drove past the property with DC Lewis, pointing out the relevant buildings to DC Lewis, and specifically identifying the green shed as the “shop” from which Mr Weber was selling methamphetamine; and
that, while there superficially might appear to be an inconsistency between indications from CS#1 that Mr Weber was receiving methamphetamine from Mr Fuller and indications from CS#2 that Mr Fuller was receiving methamphetamine from Mr Weber, it actually was wrong to say that the supplied information was incorrect or contradictory, as the relevant information had been supplied at different times and the primary direction or flow of methamphetamine supply lines had changed over time.11
DC Lewis presented a copy of the four page “GeoWarehouse Property Detail Report” which he had reviewed and noted in the ITO, and had available to him at the time he was preparing his warrant application, but failed to attach as an exhibit to that ITO. The report was obtained through the GeoWarehouse service, through which licenced users, (including designated persons within the OPP), can access Ontario’s electronic land registration system to confirm address information. The particular report upon which DC Lewis relied was provided in response to a specific query directed by DC Lewis, asking for property details in relation to “4317 Road 119”.12 It includes the short formal legal description of the property replicated in the ITO, but also two aerial photographs of the relevant location, (the same photo reproduced in a smaller and larger size), in an obviously rural area, with a superimposed orange boundary indicating the property corresponding to “4317 Road 119”. The area within that boundary includes the entirety of the horseshoe driveway, white house, green shed, brown shed and white mobile trailer described by DC Lewis in the ITO.
In his testimony, DC Lewis also provided further verbal descriptions of the property. For example, he noted:
that the rural property was located to the north of Stratford on Road 119, on the east side of that road;
that the property had one continuous “horseshoe” driveway, with each entrance leading from Road 119 road, around the house, (located within the horseshoe), and past each shed, (located outside the horseshoe), before returning back to Road 119;
that the two driveway entrances were approximately 50-60 meters apart;
that the white house and green shed were located nearer to the north entrance to the driveway;
that the brown shed and white trailer were located nearer to the south entrance to the driveway;
that the white residence and brown shed were approximately 40 meters apart, “corner to corner”;
that the white residence or house was approximately 900 to 1200 square feet in size;
that each of the two sheds was actually quite large in size, with the footprint of the brown shed being approximately 35 feet wide (at the front) and 45-50 feet long, and the footprint of the green shed being approximately 50 feet by 30 feet;
that the white mobile trailer was located in the yard to the north side of the brown shed;
that, apart from the structures described by DC Lewis and identified in the GeoWarehouse aerial photograph, there were no other buildings within the indicated property that matched the description of a “one storey white house”, a “green detached shed”, or a “brown detached shed”; and
that, apart from the one described by DC Lewis, there similarly was only one object ever seen within the indicated property that matched the description of a “white mobile trailer”.
DC Lewis also testified that, when he was making his observations at the relevant location, he noted that a different “911” marker had been placed at each driveway entrance; i.e., with a “4317” marker at the entrance to the north, and an additional “4307” marker at the entrance to the south. In that regard:
DC Lewis confirmed that the markers were located as depicted in the additional photographs put to him by counsel for Mr Fuller;
DC Lewis was aware, when carrying out his investigation and preparing his warrant application, that municipalities had begun adding such markers to the end of driveways and lanes leading into rural properties approximately 20 years ago - although he did not know precisely when that was done within various parts of the County of Perth.
DC Lewis also was aware that such “911” markers had been added in an effort to provide readily available directional assistance to police, fire and ambulance vehicles dispatched to more rural locations in response to calls for emergency assistance, as such vehicles often found it difficult to locate destinations quickly when trying to respond to locations specified by Lot and Concession references.
However, DC Lewis also knew, through his many years of policing, (including 75 instances of swearing an ITO in support of warrant applications), that such superimposed “911” markers were not always consistent with specific registered street addresses already assigned to properties by the municipalities in which the properties were situated. In particular, he repeatedly has encountered cases where the added “911” markers have numbers that differ from the proper registered address actually assigned to the property by the relevant municipality.
In my view, further responses from DC Lewis during cross-examination made it quite clear that he regarded a registered municipal address as the most accurate and appropriate way of providing an address for property in respect of which a search warrant was being sought, and that he used “911” markers to provide additional descriptive information only where such information was consistent with the registered municipal address and, in his view, therefore not misleading. In particular, DC Lewis acknowledged that, in the past, where multiple “911” markers on a property contained the same number, (corresponding to the proper registered municipal address for the property), but also contained additional letter references corresponding to separate buildings on the property, he had included such information in his sworn “ITO” affidavits. For example, he indicated that he might have included additional information about the relevant “911” markers in this case if the two markers, both located on property having the same registered municipal address of “4317 Road 119”, had read “4317A” and “4317B” instead of “4317” and “4307”.
In this particular instance, DC Lewis initially had contacted the Township of Perth East to make inquiries about 4317 Road 119, (i.e., the address referred to by both confidential informants), and received confirmation that the property was owned by Jamie Weber. After driving past the property again and personally observing that two different “911” markers had been placed on the property, (i.e., one at each entrance to the horseshoe driveway, with the 4317 marker at the north entrance and the 4307 marker at the south entrance), and noting both markers in his notebook, DC Lewis contacted the municipal office of the Township of Perth East again, that same day, to ask about the two markers. In response, the Township confirmed that there were two different “911” markers at the relevant property, with one marker placed at each entrance to the property’s driveway, but also indicated that, notwithstanding the existence of the two “911” markers, the proper registered address of the relevant property in the Township’s records was “4317 Road 119, Township of Perth East”. As DC Lewis put it, although the property might have an additional “911” marker bearing the number “4307”, it had been made clear to him by the Township that was “not an actual address”, and that 4307 Road 119 actually “does not exist”.
Those indications received by DC Lewis from the Township were consistent with and corroborated by the property boundary, for “4317 Road 119” in Perth East, depicted on the aforesaid GeoWarehouse Property Detail Report.
Relying on the information received from the Township and the information from that GeoWarehouse report, DC Lewis thereafter accordingly used the “4317 Road 119” reference and its short legal description from the GeoWarehouse report to describe the property targeted by the ITO and warrant application.
DC Lewis readily acknowledged and confirmed that he had not included any reference to the additional “4307” marker or number in his sworn ITO. In particular, while he had included such a reference in an earlier draft of the ITO, he deliberately removed it once he received further information indicating and confirming that “4307” Road 119 was not an actual municipal address, and therefore information not consistent with or indicative of the relevant property’s actual registered municipal address.
In cross-examination, it was put to DC Lewis that he deliberately refrained from including any reference to the separate “911” marker with the “4307” number, in his sworn ITO, because he was concerned that inclusion of such information might have led to the warrant being refused in relation to the brown shed; e.g., on the suggested basis that most of the observed vehicles and persons visiting the relevant location had travelled to or parked nearer to the white residence and green shed than the brown shed. DC Lewis testified, and I accept, that he had no such intention. Emphasizing that such suggestions were “completely wrong”, DC Lewis referred again to the above reasons why he honestly thought it unnecessary and inappropriate to include a reference to the 911 marker reading “4307”, noting that any inclusion of that further detail in the ITO necessarily would have been accompanied by the same reasons explaining and confirming why the marker’s “4307” reference was not an accurate indication of the relevant property’s actual address.
In the course of cross-examination regarding other information and observations described in the ITO, DC Lewis provided additional information and/or clarification that included the following:
DC Lewis noted that, although he had assisted with execution of a search warrant at the property in May of 2016, had been positioned during that exercise as a “cover officer” near a door of the green shed on the property, and was present when other officers knocked on the door to ask for Mr Fuller, he personally had never looked into or been inside that building, and accordingly could not say, at the time of his warrant application, how the interior of the green shed may or may not have been subdivided. Nor had he ever been inside the white house/residence or the mobile home/trailer. He believed he had been present inside the brown shed for a time, but had not actively participated in any search of that building.
DC Lewis clarified that the 2002 conviction Mr Weber had on his criminal record, relating to possession of a controlled substance for the purpose of trafficking, related to marijuana.
In relation to the information provided to him by DC Weyers, concerning the traffic stop of Ms Radstake and Mr Wand on February 6, 2017, when they were followed by police after leaving the relevant property, DC Lewis confirmed his receipt of further information indicating that the car had been stopped because it was stolen, and that the fresh baggie containing 3.5 grams of methamphetamine was discovered when the occupants of the vehicle were searched incident to arrest. He also confirmed that he had no information as to where the relevant vehicle may have travelled before it visited the Weber property.
DC Lewis repeatedly acknowledged that, during the course of his surveillance, he was not always able to see or identify the occupant of particular vehicles - even if he occasionally was able to obtain the licence plate to identify the vehicle’s owner, and draw a corresponding inference that the registered owner was likely one of the vehicle’s occupants.
DC Lewis similarly acknowledged that he similarly was not always able to see whether persons had exited or approached the visiting vehicles, precisely where individuals exiting vehicles may have gone while on the property, or the precise interactions such individuals may or may not have had with others on the property. In that regard, however, DC Lewis noted and emphasized that most of his relevant surveillance observations were taking place in very cold February and March weather, when people generally were not inclined to stand outside but naturally went inside buildings, and for obvious reasons he generally was unable to discern what may or may not have transpired within the various buildings during such visits.
DC Lewis confirmed that the silver or grey SUV seen visiting the property on February 23, 2017, being driven by an unknown male, was not the same vehicle as that registered to Ms Little. However, he was unable to say whether the silver SUV seen at 12:52pm on February 24, 2017, was or was not the same vehicle registered to Ms Little.
DC Lewis believed, but was not certain, that the red Ford vehicle seen arriving at the property on March 8, 2017, was the same one he had seen parked outside the brown shed on earlier occasions.
DC Lewis also believed, but was not certain, that Mr Sneddon was driving the vehicle registered to him when it was seen at the property on March 8, 2017. In particular, while the vehicle had tinted windows, the sun was bright that day, and DC Lewis could see inside to the extent of confirming that the driver was of the same size and stature as Mr Sneddon.
DC Lewis confirmed that the object he had seen hanging from under the roof of the residence on February 23, 2017, and honestly suspected to be a surveillance camera at the time of the warrant application, was later determined to be a solar light. A surveillance camera was discovered later in the brown shed, pointed towards the road while linked to a TV monitor inside the brown shed. However, that was not noted or discovered before execution of the search warrant on March 9, 2017.
While DC Lewis acknowledged the possibility that a vehicle travelling in one direction before turning and traveling back the same way might be consistent with being lost, he emphasized that, at the time, he and DC McGough thought the observed movements of the Miller vehicle on February 24, 2017, (which included a turnaround after travelling the opposite way for “a couple of concessions”), were more consistent with a manoeuvre commonly used by those trying to determine if their vehicle was being followed by the police.
Although it admittedly was not referenced in his notes or the ITO, DC Lewis recalled, with certainty, in relation to his observations of Mr Fenwick at the property on March 7, 2017, that Mr Fenwick initially went into the brown shed after entering the property on a bicycle, and that he then remained there for an estimated 5-10 minutes before exiting the brown shed and going into the green shed – after which DC Lewis had no further knowledge of his movements on the property.13
In his testimony, DC Lewis also described the steps that were taken, prior to execution of the issued search warrant, to ensure that each of the approximately 20 officers participating in execution of the warrant would have proper advance knowledge of where, why and how the operation was to be carried out. In that regard:
Each of the officers was required to attend a briefing, led by DC Lewis, which took place between 5:00am and 5:14am on the morning of March 9, 2019, before the warrant was executed. The briefing included a review of the places to be searched pursuant to the warrant, and the various items officers were to be looking for.
Each of the officers also was required to review the issued search warrant, and sign the back of the document to confirm that had been done. DC Lewis also made copies of the warrant, in a reduced size, that participating officers could paste into their individual notebooks.
Each of the officers also was required to review and sign an “Operations Plan”, also known as a “SMEACC report”, with the SMEACC acronym standing for “Situation, Mission, Execution, Administration, Command and Control”. As DC Lewis explained in detail, the document is designed to ensure that all officers involved in the operation will know where they are going, what they are to be doing, why they are doing it, what they will need to do it, and what persons and possible hazards may be encountered. For that reason, the document includes such information as the location and address of the property, the names of the subjects and persons of interest involved, a brief description of the nature and history of the investigation, the tactical approach that will be employed, details of what officers were to go where and the duties they were to perform, the tools the officers would require, as well as photographs and maps.
DC Lewis indicated that, although all officers were present for the briefing, (during which DC Lewis reviewed the warrant and SMEACC plan), they also were reviewing and signing off on the warrant and SMEACC before and after that briefing session.
A three-page extract from the relevant “Operations Plan” or SMEACC approved by the supervisor of DC Lewis, and reviewed and signed by each officer participating in the warrant’s execution, was filed as an exhibit.14 The extract includes, amongst other information:
a reference to the address of “4317 Road 119, Township of Perth East”;
a map indicating the location of the property;
a description in words, stating “Single storey residence, two outbuildings (steel sheds), mobile trailer parked at rear with numerous vehicles parked in front of brown shed”; and
small and large photographs of the location, (the originals of which all were in colour rather than black and white), clearly showing both entrances to the driveway, the white house, the green shed, the brown shed, the white mobile trailer, (of the type akin to a mobile home, in the sense it was capable of being used as a residence), as well as various vehicles, with written arrows and annotations, (added by DC Lewis when preparing the Operations Plan for presentation to participating officers), noting particular entrances to the buildings.
Coloured copies of those photos from the Operations Plan extract also were filed as exhibits. DC Lewis confirmed that the photos, taken prior to the warrant’s execution, nevertheless accurately depicted the scene of the location on the morning of the warrant’s execution, apart from some vehicles that were parked near the green shed in the photographs not being present when the warrant was executed.
The 20 officers who would be participating in the warrant’s execution had been divided into two teams; i.e., “Team 1” and “Team 2”. In that regard:
Each team would be led by a Detective Sergeant or “DS”, (DS Johnson and DS Pollard respectively), who would be responsible for each team.
Team 1 was assigned primary responsibility for executing the warrant in relation to the white house/residence, which would be cleared and secured before the team proceeded to do the same in relation to the green shed.
Team 2 was assigned primary responsibility for executing the warrant in relation to the brown shed and white mobile trailer.
To help ensure that the relevant team leaders were fully familiar with the lay out of the relevant property, its buildings and the white mobile trailer prior to execution of the warrant, DC Lewis took DS Johnson and DS Pollard in his vehicle for a drive past the property, at 5:35am on March 9, 2017. Although it was still dark, (with lights on in the house), DC Lewis was able to point out the locations to be searched, (e.g., the relevant buildings and trailer), to the team leaders.
All officers participating in the warrant were given directions by DC Lewis that Mr Weber and Mr Fuller were arrestable for possession of methamphetamine for the purpose of trafficking, based on reasonable and probable grounds formed by DC Lewis set forth in the ITO. Further individuals found on the property were simply to be detained, during execution of the warrant, unless other reasonable and probable grounds were formed for their arrest.
In his testimony, DC Lewis also provided further information about the manner in which the warrant was executed. Information provided in that regard included the following:
DC Lewis was with the first officers to arrive at the scene at 6:03am, and was with the last officers to leave the scene at 11:38am.
During that entire time, DC Lewis saw no officers searching in areas not covered by the warrant. Nor did any officers express any questions or concerns about where they were and were not to search.
DC Lewis was the first officer through the door of the white residence/house, where he encountered and detained Mrs Weber, while another officer located Mr Weber in a bedroom of the residence and arrested him. (DC Lewis believed approximately 5-6 officers entered the residence, while other members of Team 1 acted as “cover officers” to ensure that occupants of the residence did not try to exit through windows or other openings.) When marijuana and methamphetamine then were found in plain sight, Mrs Weber was arrested for possession of marijuana for the purpose of trafficking, and for possession of methamphetamine.
26As noted above, additional testimony also was provided by Charlie Rau, another OPP officer, who was called as a witness by counsel for Mr Fuller, and then cross-examined by Crown counsel – with Mr Weber’s counsel choosing to ask no questions of the officer.
27In his testimony, Officer Rau provided testimony concerning his participation in execution of the relevant search warrant. Among the many details he provided in that regard were the following:
At the time of the warrant’s execution, Officer Rau was an experienced police officer who had been with the OPP for more than 15 years. Although regularly assigned to OPP’s organized crime bureau, (which works from the OPP’s general headquarters in Orillia), he was assigned to assist with execution of the relevant warrant, and accordingly arrived in Perth County in the early morning hours of March 9, 2017.
At approximately 4:40am, Officer Rau attended at the OPP detachment in Sebringville, and a briefing subsequently held there for officers who would be participating in execution of the relevant warrant. In that regard Officer Rau confirmed the following:
The relevant briefing was led by DC Lewis, with the possible assistance of DS Johnston.
It was made clear that the purpose of the intended operation was the safe execution of a search warrant at 4317 Road 119, in Perth East.
Officers participating in the operation, including Officer Rau, reviewed the relevant search warrant, as well as an “Operations Plan” – also known as a “SMEACC Plan”. The package included the large colour photographs, (already entered into evidence through DC Lewis), depicting the property to be searched, including the white house, green shed, brown shed and white trailer located on the property.
Participating officers were divided into teams, up to 10 members in size, and the team to which Officer Rau was assigned, (as a an “entry and searching officer”), was given primary responsibility for clearly, securing and searching the “brown shed” and what Officer Rau described in his testimony as the “white mobile home” on the property. However, it also was made clear that, once officers were finished with specific initial assignments, they might be called upon to perform other tasks at other points on the property as the operation proceeded.
The instructions provided to officers participating in the operation included a direction to search for methamphetamine and indicia of trafficking; e.g., scales, packaging, debt lists, cash, cellular phones and surveillance equipment.
The officers participating in the operation proceeded to the relevant location in a convoy of vehicles, leaving the Sebringville detachment at approximately 5:54am and arriving at the property at approximately 6:04am. Officer Rau travelled in the front passenger seat of a van, (occupied by four other named officers), which was the fourth one in line, and assigned to approach the brown shed by entering the south entrance to the property’s driveway, while the three vehicles ahead proceeded towards the north entrance to the property’s driveway.
As the vehicle in which Officer Rau was travelling approached the south driveway entrance, the officers could see a Blue Jeep vehicle travelling on the property and accelerating towards the same driveway entrance; i.e., apparently intending to exit the property onto Road 119 from that location. Although the driver of Officer Rau’s vehicle asked him to activate the police vehicle’s blue and red emergency lights, there was insufficient time to do so before there was a “minor” collision; i.e., between the police vehicle in which Officer Rau was travelling as it entered the property, and the Blue Jeep vehicle before the latter exited the property.
Immediately after that collision, the five officers exited the police vehicle involved, surrounded the Blue Jeep vehicle, secured the two persons inside, and arrested the vehicle’s male driver before proceeding to the brown shed.
While Officer Rau was not the first officer in the relevant “stack” of officers to enter the brown shed, (and therefore could not say whether the door had to be breached or not), he and officers in his team were able to enter and “clear” that building; i.e., to make sure there were no other persons inside it.
Officer Rau and other officers in his team then proceeded towards, and similarly cleared, what Officer Rau described as the “white mobile home”. Given its more limited size, not all of the officers involved entered the unit while it was being cleared; e.g., with Officer Rau standing outside while that was being done.
After an identification officer had photographed and videotaped relevant interiors prior to the commencement of search activity, Officer Rau participated in a search of the brown shed. In that regard, Officer Rau indicated and confirmed the following:
Approximately 6-8 officers participated in searching of the brown shed.
Although there were two levels to the brown shed’s interior, the upper level was in the nature of an “accessible attic”, to which Officer Rau personally did not ascend.
The interior of the lower level of the brown shed generally was very cluttered, insofar as it was filled with furniture, all terrain vehicles, snowmobiles, multiple lap top computers, tools, tool benches and various other items. However, the southeast corner appeared to be living quarters, with a less cluttered area containing items of furniture, (including couches), plastic “totes” or bins containing male and female clothing, and a refrigerator that was filled with fresh and perishable food that apparently had been placed there recently.
The search of the brown shed’s interior admittedly needed to be “multifaceted” and “thorough”, in order to look for all items covered by the warrant, including items, such as debt lists, which could be concealed in relatively small spaces.
In the course of the search, Officer Rau personally located various items of interest, (e.g., a large clear bag containing “zip top” plastic baggies of various sizes), which he turned over to another officer.
Officer Rau did not personally participate in any search of the “white mobile home”. However, he did spend approximately one hour searching, (without locating any items of interest), through three vehicles parked in front of the brown shed, as they too were covered by the search warrant.
Officer Rau indicated that the photos included in the Operations or SMEACC plan assisted in determining the relevant locations to be searched pursuant to the warrant. However:
Officer Rau also confirmed that, on arriving at the property, there was no confusion whatsoever as to what constituted the “brown shed” or “white mobile home” to be searched by his team, as there were no other structures or units on the property which would have qualified as a “brown shed” or “white mobile home”.
Similarly, while Officer Rau was not tasked with securing or searching the “white residence” or “green detached shed” on the property, he could see officers attending at each of those places covered by the search warrant, and that there were no other buildings or units at the location capable of fitting the description of a “white residence” or “green detached shed”.
More generally, Officer Rau confirmed that, apart from the white residence, detached green shed, detached brown shed and white mobile home or trailer entered by officers, to execute the warrant, there were in fact no other structures whatsoever on the property.
Officer Rau left the property at approximately 11:38am.
28Finally, I received further testimony from two civilians, Michelle Little and John Stacey, who were called as witnesses by counsel for Mr Weber.
29Evidence elicited from Ms Little included the following:
She lives in Stratford, and is employed at Community Living. She is a friend of Mr and Mrs Weber, and was so in the winter of 2016-2017.
Although she acknowledged having no specific or detailed memories of her visits to the property that winter, she said that she usually would visit the Weber property approximately once or twice a week, depending on her schedule. She believed she normally would stay “just an hour or two”, and says she never stayed over night. At the time, she was travelling in her 2007 Honda CRV vehicle, which she alone would drive.
Ms Little says that she normally would visit with Mrs Weber in the house on the property, (especially during the winter), but that she also would visit the nearby green shop to smoke, and during the “many times” Mr Weber helped her by working on her car there.
Ms Little described the interior of the green shed, saying there was an interior wall which divided the building into two sections. In particular:
One section of the green shed’s interior, (accessible through the exterior “man door” nearest the house, which Ms Little normally used), was heated in winter, and was described as a “man cave” containing numerous tools, woodworking equipment, “camping stuff”, and recreational items such as a dart board. It was the section in which Ms Little observed Mr Weber engaged in activities such as car repair, woodworking and other building activities, as well as socializing.
The other unheated section of the shed’s interior was said to contain various items such as wood, bikes, a lawn mower and empty bottles.
Ms Little said that she never had occasion to enter the brown shed on the property.
Ms Little indicated that she did not have a criminal record, and denied use of controlled substances. She also indicated that she had never seen Mr Weber buy, sell or use controlled substances.
30Evidence elicited from Mr Stacey included the following:
Mr Stacey lives in Stratford, and is employed by a local manufacturer. He met Mr Weber “through acquaintances”, has known him for many years, and was friends with him in the winter of 2016-2017. At that time, Mr Stacey was driving a 1996 Ford pickup truck.
Mr Stacey says that he was invited to visit Mr Weber at his property primarily because of the interest the two men shared in woodworking, (which Mr Stacey does as a hobby), and did so. However, Mr Stacey candidly acknowledged that he had no specific memories of any specific visits during the winter of 2016-2017. Moreover, he expressed confusion over whether or not he actually may have been away from the area during much if not all of the period from December to February of 2016, as he recalled being away in Mexico for a 10 week period that ended shortly before early March of 2017.
Mr Stacey says that, during his visits to the Weber property in 2016-2017, he generally would visit the green shed on the property. (Although Mr Stacey also described attendance and use in relation to the property’s brown shed, that admittedly did not happen until 2018.) When in the green shed, Mr Stacey normally visited what he described as its “right” area, (looking at the shed in the photo taken from the road), as that area was heated in the winter. However, he also had visited the building’s “other” side as well. He says that he had done woodworking in both areas, from time to time. At one point, he had been given a key to attend the property on his own for that purpose, and had done so.
Mr Stacey said that the interior of the “right” or heated side of the green shed contained smaller hand tools, and that he had observed Mr Weber doing various types of woodwork and truck repair in that area. He said the other side of the shed contained larger tools and equipment.
He could not recall any signage on the property advertising or otherwise indicating that Mr Weber’s woodworking or automotive services were commercially available.
Mr Stacey indicated that he had no criminal record, and denied using controlled substances. He said that he had never seen Mr Weber sell drugs to others from the green shed, and that Mr Weber had never sold him drugs or asked him if he wanted to buy drugs.
31In terms of witness assessment, all four of the witnesses called during the combined application hearing presented as credible. While the police officers arguably were adverse in interest to Mr Weber and Mr Fuller, and Ms Little and Mr Stacey were admitted friends of the Webers, I did not form the impression that any of the witnesses were doing anything but their best to provide me with their honest recollections, to the best of their ability.
32As for reliability, I similarly found little reason to doubt the reliability of any of the four witnesses – with the exception of Mr Stacey’s testimony. As noted above, Mr Stacey seemed particularly confused and uncertain in relation to the dates of his travel, and therefore as to whether he had been present in the area at relevant times. To the extent there was a conflict between his testimony and that of DC Lewis, (e.g., insofar as the officer made careful notes confirming a sighting of Mr Stacey’s vehicle travelling to and from the Weber property in February of 2017, whereas Mr Stacey suggested he may not have returned to Canada until early March of 2017), I prefer and accept the testimony of DC Lewis.
33More generally, I was very impressed by the testimony, candour and apparent reliability of DC Lewis. As noted above, he readily and candidly acknowledged that he did not observe, did not record or could not recall various details, in circumstances when fabrication and/or embellishment would have assisted the prosecution.
34In my view, despite prolonged cross-examination, the evidence of DC Lewis remained remarkably consistent and fair, with the provision of sensible explanations wherever explanations were required.
35I specifically reject any suggestion that DC Lewis intended to mislead the reviewing justice, or this court, in an effort to secure or sustain the validity of the relevant search warrant.
Manner of submissions
36Following presentation of the additional evidence outlined above, there was insufficient time left in the February 2019 trial sitting, in Stratford, to complete oral submissions in relation to the application.
37On consent, submissions in relation to Mr Weber’s application therefore were tendered subsequently, in writing.
38In particular, counsel for Mr Weber delivered her written submissions on or about March 7, 2019, and Crown counsel delivered her responding written submissions on or about May 8, 2019.
General principles – Section 8 of the Charter and prior search authorizations
39General principles applicable to section 8 of the Charter, searches conducted pursuant to warrants, and challenges to warrant validity include the following:
Pursuant to section 8 of the Charter, everyone has the right to be secure against unreasonable search and seizure. The purpose of the section is to protect individuals from unjustified state intrusions into their privacy.15
A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the search is carried out in a reasonable manner. An unlawful search is presumptively unreasonable.16
Legislation such as s.11 of the CDSA, authorizing the issuing of a search warrant, requires reasonable grounds as the standard of persuasion to support issuance of a search warrant; i.e., to make issuance of the warrant lawful. Judicially interpreted, the standard is one of credibly-based probability.17
From both a common law and constitutional perspective, mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard for issuing a valid search warrant. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted.18 The test is simply whether there was at least some evidence that might reasonably be believed, on the basis of which the authorization could have been issued.19
An issuing justice is entitled to draw reasonable inferences from stated facts, and the affiant of an ITO is not obliged to underline the obvious. Moreover, some deference should be paid to the ability of a trained and experienced police officer to draw inferences and make deductions which might well elude an untrained and/or inexperienced person. It should also be remembered that an ITO is not a Crown brief, and the affiant is not obliged to record every minute step taken in the course of the investigation.20
For lawful issuance of a warrant, it is necessary, but not sufficient, that the affiant of an ITO subjectively or personally believe in the accuracy and credibility of the grounds of belief. Lawful issuance of a warrant also requires that reasonable grounds exist from an objective perspective; i.e., that a reasonable person, standing in the shoes of the police officer, would believe that the facts probably exist as asserted, and draw the inferences therefrom submitted by the affiant.21
In reviewing the sufficiency of a warrant application, the test is whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could have issued. In particular, the question is not whether the reviewing court itself would have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.22
The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace who issued the warrant, if exclusions and amplifications are necessary and appropriate. In particular:
the reviewing court must exclude erroneous information; and
the reviewing court may have reference to “amplification” evidence; i.e., additional evidence presented at the voir dire to correct minor errors in the ITO, so long as such additional evidence corrects minor and technical errors made in good faith by the police in preparing the ITO rather than deliberate attempts to mislead the authorizing justice, and bearing in mind that amplification evidence is not a means for police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.23
Again, however, the reviewing judge does not substitute his or her view for that of the authorizing justice of the peace. If, based on the record which was before the authorizing justice of the peace, (taking into account any appropriate excising of misleading information and/or proper amplification on the review), the reviewing judge concludes that the authorizing justice of the peace could have granted the authorization, then he or she should not interfere. The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the reviewing judge.24
40In determining whether reasonable and probable grounds exist to carry out a search, police are entitled to consider hearsay information, and officers not infrequently rely upon hearsay information received from a confidential informant. General principles in that regard include the following:
Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient.25
In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds and justify a warrantless search), reliability of a “tip” is to be assessed by recourse to “the totality of the circumstances”. Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two.26
In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current;27 whether it goes beyond “mere rumour or gossip”, and/or “bald conclusory statements”, to provide specific information and details; and the informant’s source of knowledge or basis for his or her assertions, (with first-hand or direct knowledge of the relevant facts being more compelling). The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant’s information is diminished by an absence of any sense as to how the informant acquired his or her information.28 A tip can be compelling even if it contains some inaccuracies.29
In determining whether such information is “credible”, courts have regard to considerations such as: whether the informant is anonymous or known and identified, (which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police); the basis on which the informant provides information, (with first-hand knowledge being more credible); whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether the informant is an “untried” and “untested” source, or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past.30
In determining whether such information is “corroborated”, courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant’s tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater.31
Reputation alone will never provide reasonable grounds, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, (in which case its veracity cannot be assumed).32
41Although it may be convenient to discuss separately the different pieces or types of evidence relied upon to justify issuing of the warrant, it is settled law that, in assessing the sufficiency of grounds offered, a reviewing court must assess those grounds in their totality. The appropriate approach for judicial review of an ITO is scrutiny of the whole document in its entirety, rather than a limited focus upon isolated passages or paragraphs.33
42With the above principles in mind, I turn to an assessment of whether, having regard to the information set forth in the redacted ITO, (factoring in any appropriate notional excision of erroneous evidence and notional inclusion of any appropriate amplification evidence), there was reliable evidence that might reasonably be believed, on the basis of which the justice of the peace could have issued authorization for the relevant warrant.
Assessment
43As noted above, the application properly brought on behalf of Mr Weber, with appropriate notice to the Crown, asserted that the sworn ITO used by the police to obtain the relevant search warrant did not contain, (at least in the redacted form now relied upon by the Crown, and after excising or clarifying information defence counsel seeks to characterize as erroneous because it is “dated” and/or “misleading”), information sufficient to justify the warrant being issued; i.e., information sufficient to raise a credibly-based probability that the proposed search would yield evidence of possession and/or trafficking in controlled substances as alleged.
44In her concluding written submissions, counsel for Mr Weber included an additional challenge to the issued warrant; i.e., that it was overly broad, insofar as it should not have extended to the white trailer or “mobile home” or other vehicles on the property. However:
a. there was no mention of such a challenge in the application material, factum and book of authorities filed on behalf of Mr Weber;
b. Crown counsel accordingly received no notice that such an issue would be raised by Mr Weber’s application;
c. not surprisingly, the issue accordingly was not the subject of any testimony, questioning or other evidence during the hearing before me; and
d. in my view, procedural fairness precludes that additional objection and argument from being raised now.
45I accordingly will focus on the issue, noted above, that was raised in Mr Weber’s application material.
46In that regard, a search warrant is presumptively reasonable, and counsel for Mr Weber acknowledged that Mr Weber accordingly bears the onus of demonstrating that the warrant in this case could not properly have been issued in the circumstances.
47In my view, Mr Weber has not discharged that burden.
48To the contrary, in my view, having regard to the totality of the circumstances set forth in the redacted ITO, (excluding some minor erroneous indications and allowing for some modest permissible amplification evidence), there was reliable evidence that might reasonably be believed, on the basis of which the relevant warrant authorization could have issued.
49In particular, it was open to a reviewing justice of the peace to conclude, based on the totality of such information, together with reasonable inferences arising from that information, that there were reasonable grounds to believe:
that Mr Weber and Mr Fuller were in possession of methamphetamine for the purpose of trafficking from the relevant Road 119 property on March 9, 2017; and
that a search of that property, (including its residence/house, detached green shed, detached brown shed, trailer and vehicles), would yield methamphetamine, assorted paraphernalia associated with drug trafficking, and the proceeds of drug trafficking activity.
50My considerations and reasons in that regard include the following:
In relation to possible exclusion from consideration of information included in the redacted ITO which was said to be erroneous, and possible consideration of what might be characterized as permissible “amplification” evidence not included in the ITO:
I do not agree with suggestions by Mr Weber’s counsel that certain information she characterized as “dated”, (e.g., because it was received or related to events that occurred weeks or months before the warrant application), should be excluded from consideration. In that regard:
As noted above, depending on the nature of particular information, it may become less compelling and inherently less reliable in predicting probability rather than possibility of a suggested state of affairs existing. In my view, however, the appropriate approach in such circumstances is not exclusion of such matters from any consideration whatsoever, by characterizing it as “erroneous”, but to consider such information as part of the totality of circumstances while bearing in mind that such information may carry less and less weight in the required determination if its nature is such that it may become increasingly stale with the passage of time.
Turning to the specific temporal aspects of information received in this particular case:
In my view, none of the information set forth in the ITO was of a nature that made it so “extremely outdated” as to have no relevance or probative value in making the required determination.
The information relating to events of May 16, 2016, was direct and certain, (insofar as DC Lewis was possessed of that confirmed information because of his participation in the earlier warrant execution), and accordingly required no assessment of whether it was probably true rather than possibly true. It provided DC Lewis with independent indications and corresponding knowledge that, in the past, (and as recently as May of 2016), Mr Fuller had a presence and degree of control in relation to elements of the Weber property, (justifying the issuance of a search warrant in relation to Mr Fuller and his activities there), and that the presence of significant quantities of methamphetamine at the property had been confirmed. As to whether a similar state of affairs might probably rather than possibly have existed in March of 2017, (i.e., in terms of Mr Fuller again being at the Weber property, residing in the brown shop or shed there, and/or there again being methamphetamine on the property), I do not think the information from May of 2016 was irrelevant. Adopting a “practical, non-technical and common sense” approach to probability, as contemplated by the authorities, it seems inherently more likely that Mr Fuller would be present or reside at the relevant property if he had been or lived there before than if he had not, and more likely that methamphetamine might be found at a property where significant quantities of it had been located before, compared to a property with no such history. Moreover, in my view, as CS#1 made reference in his or her supplied information to Mr Fuller “still living” at the property in a shed, independently acquired information that an earlier warrant had been granted in relation to the Weber property and Mr Fuller, (implicitly indicating that he had a privacy interest in that property), and that Mr Fuller was found there at the time of the warrant’s execution, is to some degree corroborative of the information subsequently supplied by CS#1.
For similar reasons, I do not think the date of past drug-related convictions of visitors to the property makes such information irrelevant and something to be notionally excluded from consideration in assessing whether the totality of circumstances were such that a warrant could have issued – although an inference of continued or renewed involvement in drug activity, based on past convictions, obviously may become weaker with the passage of time.
In my view, the information relating to the complaint from an unspecified neighbour in September of 2016 has little or no probative value in any event for the reasons outlined below – and DC Lewis seemed to agree and confirm that implicitly if not explicitly, in his sworn ITO, by not mentioning that as part of the information upon which he relied in forming his reasonable and probable grounds when applying for the warrant. It nevertheless was not “erroneous” or misleading information requiring exclusion from the ITO.
Although counsel for Mr Weber took issue with reliance by DC Lewis on information provided by DC#1 and CD#2 weeks and months before the warrant application, (i.e., insofar as some of that information was supplied in December of 2016, and in January and February of 2017), in my view its import was not “extremely outdated” so as to negate its probative value in terms of establishing probability rather than mere possibility. To the contrary, the informants were providing information that described an ongoing pattern of consistent conduct, rather than a static occurrence or event, with periodic updates confirming that the conducting was ongoing and continuing into February of 2017, and those reports then were corroborated, (in the manner outlined below), by repeated police surveillance up to the date of the warrant application.
I agree that some of the characterizations made by DC Lewis of information relating to Mr Sneddon - i.e., that Mr Sneddon was a “known drug dealer” and attended the Weber property “twice for short durations” on March 8, 2017 – arguably were somewhat overstated, and that, for present purposes, the relevant overstatements in the redacted ITO should be notionally amended in appropriate ways to exclude that degree of overstatement from consideration when determining whether there was reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued. In that regard:
In paragraph 18 of the ITO, DC Lewis obliquely referred to Mr Sneddon, (the registered owner of the vehicle described therein, as noted later in the ITO), as being “a known drug dealer and user of methamphetamine”. [Emphasis added.] At the time of the warrant application, the indication that Mr Sneddon was a “known” drug dealer, (suggesting established fact rather than suspicion or allegation), arguably was an overstatement insofar as Mr Sneddon, at the relevant time, had been convicted in the past for possessing methamphetamine but his trial for two outstanding charges of trafficking in methamphetamine was still pending. In my view, to the extent that was an overstatement by DC Lewis, it did not represent any deliberate effort or intention on the officer’s part to mislead the reviewing justice. To the contrary, I think the relevant comment in the ITO might fairly be read as DC Lewis stating his subjective belief, based on the more precise information available regarding Mr Sneddon’s past confirmed and suspected/charged drug-related activity; details that were accurately set forth by DC Lewis in paragraph 53 of the ITO. However, I think a more accurate statement of affairs in that regard, at the time of the warrant application, would have been an indication that Mr Sneddon was a “known user and suspected dealer of methamphetamine”, with the basis for that characterization being the facts accurately outlined by DC Lewis. In my view that, that more accurate statement, and the presented facts underlying it, is what should be considered for present purposes.
In paragraph 67 of the ITO, DC Lewis indicated that, on March 8, 2017, Mr Sneddon “attended the address twice, for short durations”. As DC Lewis himself fairly acknowledged in cross-examination, although the indication of two attendances at the property on the relevant date was accurate, only the duration of the second visit could safely be characterized as “short” based on the officer’s observations, as Mr Sneddon’s vehicle was present at the property when DC Lewis began his observations that day. DC Lewis accordingly had no way of knowing how long it had been there before its departure, a relatively short time after that initial observation was made. Once again, I do not view the relevant overstatement as a deliberate intention to mislead, as DC Lewis already had been careful to provide the precise nature of his observations, (including the timing of his first observation of the Sneddon vehicle on the day in question, with its noted presence on the property when surveillance began), in paragraph 53 of the ITO. However, it would have been more accurate to indicate that Mr Sneddon was seen to visit the property twice on the day in question, with the first visit being of unknown duration but at least 22 minutes in length, and the second visit being of short duration, lasting only 6 minutes. In my view, that is the information that should be considered for present purposes.
I agree with defence counsel that the information to be considered should be amplified to include indications, (not set forth in the redacted form of the ITO), that CS#1 and CS#2 each received monetary consideration for the information provided. At the same time, however, I think it would be inappropriate to include that amplified information without the ancillary information, (also in the possession of the police at the time of the warrant application), that both confidential informants, before providing their respective information to DC Lewis in this case, had been expressly advised of the possible repercussions of knowingly providing false information to the police, including exposure to possible prosecution for mischief and/or for providing false information to the police. In my view, to include one aspect of that possible amplification evidence without the other would be misleading.34
I think the circumstances to be considered also should include the further details DC Lewis outlined, in his testimony, about earlier assistance provided to the police by each of CS#1 and CS#2; i.e., particulars in that regard which, DC Lewis confirmed, were in the unredacted original version of the ITO – although he initially chose to redact them in the form of the ITO disclosed to defence counsel. In the circumstances, such details not only provide clarification of indications already set forth in the redacted version of the ITO, but their consideration is not really a resort to “amplification” evidence; i.e., in the sense of considering further information not included in the ITO. They instead represent further disclosure of information that actually was included in the original ITO submitted by DC Lewis.
I do not agree with the express or implicit suggestion by counsel for Mr Weber that, because of a suggested contradiction between the information provided by CS#1 and the information provided by CS#2, in relation to whether Mr Weber was receiving methamphetamine from Mr Fuller or vice versa, that such information should not be considered when determining whether the circumstances were such that the relevant warrant could have issued. Not only did DC Lewis explain in cross-examination why the information actually was not contradictory, but contradictory information in an ITO is not considered “erroneous” information to be notionally excised when making the required determination.35
Counsel for Weber went to considerable lengths to call and elicit testimony from Ms Little and Mr Stacey, as a suggested basis for arguing that inferences drawn by DC Fuller in the ITO were erroneous; e.g., insofar as DC relied in part on observations of their respective observed visits to infer drug trafficking activity, and/or drew an inference of Mr Weber trafficking in methamphetamine from the green shed or otherwise when neither Ms Little nor Mr Stacey had ever seen that happen. In my view, however, such evidence really is irrelevant to the question to be decided on Mr Weber’s application, which is whether the information available to DC Lewis at the time of the warrant application provided a sufficient basis for the reasonable and probable grounds being asserted, and therefore for the warrant to be issued. Again, the test in that regard is simply whether there was at least some evidence, (i.e., at the time of the warrant application), that might reasonably believed, on the basis of which the warrant authorization could have issued. The test is not the degree to which, with the benefit of hindsight and further information not available to police at the time, such beliefs might later be shown to be accurate or inaccurate. (Were the law otherwise, the Crown might just as easily argue that the warrant should have been granted because substantial quantities of methamphetamine and indicia of trafficking were found on the property when the warrant was executed.) In my view, the proper focus must be the information available and presented by DC Lewis, (with appropriate exclusions and amplifications), and the reasonable inferences capable of being drawn therefrom, at the time consideration was being given to issuing the warrant.36
As already noted, I think the information provided by telephone to the OPP from an unspecified neighbour of the Webers in September of 2016, (and later reviewed and noted by DC Lewis), had little or no probative value in terms of adding to any reliable information, reasonable capable of belief, that could have justified issuing the warrant. In that regard:
The information was not very compelling, in the sense that it provided relatively little detail beyond the indication of some sort of “chemical smell” that was “coming from” the Weber property. Identification of source by smell rather than sight is inherently less precise. Moreover, there are no indications as to the caller’s proximity to the Weber property, (although the “coming from” indication indicates the caller was not on the property itself), how the caller was able to determine precisely where the smell was coming from, the precise nature of the smell, (apart from the vague reference to it being a “chemical” odour), or precisely when or for how long the smell was noted. In particular, the indication that the smell was “coming from” the Weber property suggests a present and perhaps isolated occurrence, without any suggestion that it was a pervasive and ongoing situation. Still more troubling are the indications that the caller may have been speculating, to a significant degree, based on information that inherently was at least second-hand or possibly even more remote; e.g., information that Mr Fuller recently had been arrested following execution of a search warrant at the Weber property.
For all intents and purposes, the information is tantamount to that received from an anonymous tipster, as the ITO provides very little information that might assist in assessing the caller’s reliability. In particular, apart from the indication that the caller was a “neighbour”, (which may have been an unconfirmed indication provided by the caller himself or herself), there is no indication as to whether the caller made his or her identity known to the police, (thereby exposing himself or herself to possible prosecution for mischief or providing false information to the police), no indication that the caller had proven a reliable source of truthful information in the past, or any other basis on which the police – or the reviewing justice – could have assessed the caller’s reputation for providing accurate information.
The ITO contains no indication, or suggestion, that the police did anything whatsoever to investigate and corroborate the caller’s indication that a chemical smell was indeed “coming from” the Weber property around the time of the call.
In contrast, I think the information provided to DC Lewis by CS#1 and CS#2 does represent “evidence that might reasonably be believed”, on the basis of which the warrant authorization could have issued. In that regard:
I agree with counsel for Mr Weber that the information provided by each informant does not provide, (at least in the redacted form of the ITO), certain details provided by some informants in other drug-related investigations; details that might have made the provided information more compelling. For example, in the redacted ITO, there is no mention of the two registered confidential informants providing any information about the price or packaging of drugs said to have been sold by Mr Weber and/or Mr Fuller, specific locations within buildings on the property where drugs might be stored or “stashed”, (in contrast to the specific indication that Mr Weber usually kept methamphetamine on his person and in his coat), the specific dates of alleged drug transactions, or the specific names – apart from that of Mr Sneddon - of other persons involved in the drug trafficking said to be carried on by Mr Weber and Mr Fuller. (In his testimony, DC Weber indicated that, while he did receive such information, it was not set forth in the redacted form of the ITO, apart from disclosure of the information relating to Mr Sneddon, because the disclosure of such names might very well assist in the identification of the relevant informants – particularly when there were indications that Mr Weber and/or Mr Fuller had possible access to video surveillance of the property that might be cross-referenced to narrow the pool of those who would have known such information.) However, the absence of details that would have made information more compelling does not mean that the information provided and disclosed was not compelling in itself.
In my view, the information provided by CS#1 was compelling, and went far beyond “bald allegations” of drug trafficking. In that regard:
It repeatedly indicated that CS#1 had such information because he or she was an associate of Mr Weber, and remained so over the course of several months. That in turn warrants, in my view, a strong inference that the information was based on first hand observations made by CS#1 and/or through admissions received directly by CS#1 from Mr Weber.
It indicated that the described conduct was ongoing, and therefore that the information was current at the time it was provided.
It indicated the type of drug involved; i.e., methamphetamine.
It identified specific locations on the large rural property where the drug trafficking was said to occur; e.g., from the house and the green shed.
It indicated that Mr Fuller’s connection with the relevant property was much stronger than that of an occasional visitor, insofar as he was “still living” in a “shop” on the property, and was specifically linked to the brown shed.
It indicated the source, direction and method of methamphetamine supply, at least insofar as Mr Weber, Mr Fuller and Mr Sneddon were concerned – with Mr Sneddon being at least one of the persons, expressly identified by name, with whom Mr Weber was dealing in the course of the described drug-trafficking.
It provided specific quantity information; i.e., indicating the level at which Mr Weber was said to be trafficking in methamphetamine. In particular, it indicated that Mr Weber was selling methamphetamine, to one customer at least, “a quarter ounce at a time”.
It provided specific quantity information indicating the amount of methamphetamine Mr Weber usually had on his person, (i.e., half an ounce), and where it usually could be found, (i.e., in his coat).
It indicated that Mr Fuller, apart from doing pick-ups and deliveries of methamphetamine for Mr Weber, made a practice of not keeping methamphetamine on his person.
It provided specific indications of how frequently Mr Weber was trafficking in methamphetamine, (i.e., “every day”), and indications that the trafficking was not confined to a small number of customers but extended to “quite a few people”.
It provided indications, (both expressly and through the “updates” provided by CS#1), that the described drug trafficking activity was ongoing and extended over weeks and months.
In my view, aspects of the information provided by CS#2, although not as extensive as that provided by CS#1, also were compelling and went beyond “bald allegations” of drug trafficking. For example:
It indicated that CS#2 had such information because he or she also associated with Mr Weber. Again, in my view, that provides strong support for a reasonable inference that the information was based on first hand observations made by CS#2, and/or through admissions received directly by CS#2 from Mr Weber.
It indicated the specific type of drug involved; i.e., methamphetamine.
It too identified specific locations, on the large rural property, where Mr Weber would engage in drug trafficking; i.e., his residence and “the shop” or “shed” of unspecified colour. Moreover, in my view, there is a reasonable basis for inferring that CS#2 was referring to the green shed in that regard, (i.e., as far as Mr Weber was concerned), insofar as he or she seemed to distinguish that building from the “brown shop” on the property, which he or she associated with Mr Fuller.
It indicated that Mr Fuller had an association with the property going beyond that of a mere visitor, insofar as he was said to be living “in the brown shop” on the property.
It provided specific indications as to the directional source and flow of methamphetamine as between Mr Weber and Mr Fuller.
In my view, there also were indications that CS#1 and CS#2 were credible sources of information. In that regard:
I note that the unredacted copy of the ITO provided the reviewing justice with the complete criminal records of CS#1 and CS#2, which accordingly provided the reviewing justice with a firm basis for assessing other express indications by DC Lewis, in the ITO, that neither informant had any convictions for crimes of deceit or dishonesty. However, while those particular indications by DC Lewis of the two registered informants having no convictions for crimes of deceit and dishonesty survived into the redacted form of the ITO, full details of the relevant criminal records did not, as DC Lewis felt that provisions of such details would tend to disclose each informant’s identity. In particular, while DC Lewis was willing to confirm in cross-examination that neither informant had any convictions for perjury or obstruction of justice, the list of crimes having a more serious and fundamental element of dishonest is more extensive than that, and the detective’s inability to make further disclosure as to whether or not either CS#1 or CS#2 had such convictions effectively makes it unclear, for present purposes, whether or not they did. That in turn affects how much reliance the authorizing court could confidently place on the detective’s assertions in that regard, and the information being provided by each informant.37 Having said that, the lack of such information also does not prevent such informants from being considered reliable for other reasons.
In this case, neither CS#1 nor CS#2 was anonymous; a status which would increase the risk of a provider of information being willing to fabricate or embellish information thinking he or she would face no consequences for the provision of false information. To the contrary, the identity of each formally registered CI clearly was known to the police. Moreover, although each received monetary consideration for provided information, (which, without more, might create a motive to fabricate or embellish provided information to obtain such consideration), each also had been expressly warned of possible repercussions if they knowingly provided false information to the police. In particular, each knew that such provision of false information not only would end their relationship with the OPP, (thereby also ending the prospect of any further monetary or other consideration in the future), but each would face the prospect of possible criminal prosecution.
In my view, the already noted indications and reasonable inferences that each informant was providing information based on first-hand observations, and/or indications received directly from Mr Weber, also strengthened the credibility of the information CS#1 and CS#2 were providing.
Moreover, the fact that both informants were entrenched in the drug subculture, and acknowledged users of methamphetamine, inherently made them persons more likely to be associated with those engaged in the supply and purchase of that controlled substance, and to witness such drug transactions. In my view, that too enhances the credibility of their information.
While neither CS#1 nor CS#2 had a lengthy track record of providing accurate, reliable and truthful information to assist with past police investigations, the two registered informants also were not completely untried or untested. In particular:
As noted above, at the time CS#1 provided his or her relevant information to DC Lewis in this case, he or she already had provided information leading to one arrest and one search warrant, in relation to the same accused but in two separate cases. CS#1 therefore not only had demonstrated reliability, but also reliability over time.
As noted above, at the time CS#2 provided his or her relevant information to DC Lewis in this case, he or she had provided information leading to a search warrant that in turn had led to multiple arrests and at least one conviction, with a further charge still before the courts at the time of the warrant application. In my view, that obviously spoke to the reliability and value of the information CS#2 had provided in the past.
In my view, information available to DC Lewis through other sources, and further police investigation and surveillance, also had provided a significant measure of corroboration, in relation to the information being provided by CS#1 and CS#2. In that regard:
Through records checks and his own personal experience, DC Lewis knew that Mr Weber and Mr Fuller had engaged in drug trafficking in the past, (as reflected in past convictions), and that Mr Fuller was facing charges of having engaged in such activity in the recent past.
Through his own personal experience participating in execution of an earlier search warrant at the Weber property, his further record checks and other inquiries made in relation to the property, the Webers and Mr Fuller, and the surveillance carried out in relation to this investigation, DC Lewis was able to confirm that CS#1 and CS#2 each had an accurate knowledge and understanding of the nature and lay out of the Weber property, in terms of its location, ownership, residents and buildings.
DC Lewis similarly was able to confirm not only the informant indications of Mr Weber’s presence at the property and particular associations with the green shed, as well as the residence, but also the informant indications of Mr Fuller’s significant ongoing presence at the property and particular associations with the brown shed.
DC Lewis also knew, (from his previous warrant execution experience), that there was a confirmed prior history of Mr Fuller being present at the Weber property and having a significant degree of control over aspects of the property, (implicit in granting of the earlier warrant), which in turn provided a basis of support for the informant information that Mr Fuller was “still living” in the brown shed.
While counsel for Mr Weber repeatedly noted that much of the provided information relating to the property, its buildings and movements of Mr Weber and Mr Fuller on the property was visible to anyone from the street/road, I disagree with the suggestion that there was no corroborative value to DC Lewis confirming, through the means noted above, the accuracy of what the informants were indicating to him in that regard. In particular, I think the rural and somewhat isolated nature of the property and its buildings inherently diminished the likelihood of persons having such awareness about the Weber property, and the particular attachments and movements of Mr Weber and Mr Fuller on that property, unless such persons had occasion to make sustained and repeated observations of the property over an extended period. In my view, that in turn allowed for a reasonable inference that each informant did indeed associate with Mr Weber as claimed, in turn putting each informant in a position wherein he or she was likely to have acquired the sort of information each was providing to DC Lewis.
As noted above, DC Lewis also had received reliable information from another officer, (DC Weyers), about the Wand/Radstake traffic stop, search and methamphetamine discovery described above; i.e., the events of February 6, 2017. Again, those events included police discovery of a “fresh” baggie, containing 3.5 grams of methamphetamine, being found in a vehicle, (the occupants of which had criminal records, including a recent conviction involving methamphetamine), that was followed from the Weber property, and stopped and searched before it had stopped anywhere else. Counsel for Mr Weber rightly notes that there was no available information to indicate where Mr Wand and Ms Radstake may have attended before visiting the Weber property, and that the relevant methamphetamine could have been acquired elsewhere. In other words, defence counsel rightly notes that the inference drawn by DC Lewis, (i.e., that the methamphetamine was acquired at the Weber property), was not the only possible inference. However, I agree with DC Lewis that the inference of Mr Wand and Ms Radstake having obtained methamphetamine from the Weber property, on February 6, 2017, was a reasonable one.
While the movements and visitations observed during the course of surveillance carried out by DC Lewis and DC McGough stopped short of witnessing drug transactions, it needs to be remembered, as noted above, that police corroboration of informant information does not require confirmation of every detail provided by informants, or commission of the alleged crime. In this particular case, there were numerous observations which indicated, in their totality, to an experienced drug enforcement officer, a pattern of activity consistent with drug trafficking. In my view, it was not unreasonable for DC Lewis to draw such an inference. Without limiting the generality of the foregoing:
I think the noted observations were indeed consistent with a remarkable moderate flow of visitors to and from the property, throughout the course of surveillance, despite the property’s rural nature and somewhat isolated location, and the fact that, to all external appearances, it was the location of a residence rather than a commercial business.
Moreover, a marked number of visitors to the property, who made the effort to travel to that rural location, apparently then were visiting only for relatively short periods of time.38
Some (although not all) of those visitors, or the registered owners of vehicles such visitors were using, were noted through database searches to have a history of criminal activity, (albeit dated in some cases), including past drug-related activity.
Based on vehicle ownership and driver observations, DC Lewis believed, (reasonably in my view), that at least one of the observed visitors to the property was Mr Sneddon; i.e., one of the specific individuals, (whose name had not been redacted from the disclosed copy of the ITO), whom informant information had identified as one of those visiting the relevant rural property for the purpose of engaging in drug-related activity. Moreover, Mr Sneddon’s vehicle was observed to make at least one very short visit to the property, having already made an earlier visit, (of unknown duration), the same day.
Another of the vehicles seen visiting the property, after leaving the property, had engaged in what driving manoeuvres which, to the trained eyes of DC Lewis and DC McGough, appeared to be countersurveillance driving.
As noted above, a degree of deference is owed to the assessment made by a trained and experienced drug-enforcement officer such as DC Lewis. Viewed through his eyes, the surveillance observations he took into account had significance not readily apparent to persons without such training and experience, and were consistent with the type of drug activity being described by CS#1 and CS#2.
I also think it significant that, despite the absence of any evidence or indication whatsoever that CS#1 and CS#2 knew or communicated with each other, the information provided by each confidential informant corroborated, to some extent, that provided by the other.39
51Again, there is nothing in the ITO or additional evidence before me that persuades me that there was any intention to mislead the reviewing justice, or that the reviewing justice was misled.
52Moreover, I think that, viewed properly in its totality, (rather than a parsed fashion emphasizing possible frailties of individual considerations viewed in isolation), the information provided in the redacted ITO sworn by Detective Lewis, with the aforesaid exclusions and amplifications, went beyond mere suspicion, conjecture, hypothesis or a fishing expedition; i.e., in terms of the detective’s stated and unquestioned subjective belief that the offence of possession of methamphetamine for the purpose of trafficking was occurring at the relevant Road 119 property, and that a search of the residence, sheds, trailer and vehicles thereon would disclose evidence supporting the commission of that offence.
53In particular, I think a reasonable person, standing in the shoes of DC Lewis, with his experience and training, and with similar access to all of the information described above, reasonably could have believed that the facts probably existed as asserted, and reasonably have drawn the same inferences DC Lewis described.
54Again, they were not the only inferences that could have been drawn, but in my view they were reasonable inferences.
55There was, in turn, sufficient credible and reliable evidence to permit a reviewing justice to find reasonable and probable grounds to believe that the alleged offence had been committed, and that evidence of that offence would be found at the specified time and place identified by DC Lewis.
56Having regard to the totality of the circumstances, the standard for issuing a valid search warrant accordingly was met, and the warrant was properly issued. The search conducted pursuant to the warrant therefore was authorized by law, and not unreasonable. There accordingly was no violation of the rights guaranteed to the applicants by section 8 of the Charter – and therefore no consequential breach of the rights guaranteed by section 9 of the Charter.
57In the circumstances, there is no need to consider application of s.24(2) of the Charter.
Conclusion
58For the reasons outlined above, the pretrial application brought by Mr Weber is dismissed.
59When the matter was last before me, (on May 13, 2019), it was made returnable on September 3, 2019, for the scheduling of next steps in the wake of the outcome of the pre-trial application. The matter accordingly will be spoken to again then.
60In that regard, counsel should attend prepared to speak to the possibility of Mr Weber’s trial proceeding during the three-week trial sitting commencing in Stratford that day.
“Justice I. F. Leach”
Justice I.F. Leach
Date: August 29, 2019
Footnotes
- No pretrial application material was filed on behalf of Annamarie Weber, and her counsel Mr Fair rose at the outset of the hearing before me to confirm that, while he and Mrs Weber were attending, (for part of the hearing at least), it was simply to observe and not participate in the pretrial proceedings.
- It should be noted at the outset that, with the consent of all concerned, Mr Weber’s pretrial application in this matter was heard simultaneously with the hearing of a pretrial application brought by Mr Paul Fuller in a separate but related proceeding, (i.e., R. v. Fuller, Stratford Court file no. 17-629), arising from the same underlying circumstances. In particular, the charges in this proceeding against Mr Weber, and the charge against Mr Fuller in that other proceeding, stem from police execution of the same underlying search warrant. In the result, all concerned were content to have application-related evidence and testimony presented during the same hearing, with the participation of counsel representing the Crown in both proceedings, counsel for Mr Weber, and counsel for Mr Fuller. It also was expressly agreed by the parties, through their respective counsel, that all evidence received during the combined hearing was to be considered applicable to both applications. To outline my separate reasoning in relation to each application, I have thought it best, for the sake of clarity, to prepare and release a separate endorsement in relation to each application. To ensure that the full context of each application is understood, and to underscore the reality that I have considered all evidence presented in relation to each application, my outline of presented evidence nevertheless makes reference to matters that nevertheless obviously have more relevance to one application than the other.
- Although Mr Weber’s counsel made passing references in her application material and oral submissions to the aforesaid alleged breach of Mr Weber’s section 9 Charter rights, she also confirmed that the suggested violation of Mr Weber’s section 9 Charter rights was entirely dependent on the allegation of a section 8 Charter breach. In other words, the arrest of Mr Weber was said to be arbitrary and unlawful, and a breach of Mr Weber’s section 9 Charter rights, only because the police, in making the arrest, had relied upon evidence discovered during execution of the search warrant which was said to be unlawful. Like Mr Weber’s counsel, and responding Crown counsel, I too accordingly will be focused on whether the alleged section 8 Charter breach has been established.
- As emphasized in R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paragraph 15, the police and Crown are under a legal obligation to protect the identity of confidential informants. The form of the ITO disclosed to the applicant, and relied upon by the Crown in response to this application, accordingly contained a number of redactions. In that regard, there was no suggestion by defence counsel that confidential informant privilege did not apply to the redacted information, or that any of the redactions/editing noted on the face of the ITO was unnecessary or otherwise improper. Nor was there any defence request that I consider the unredacted version of the ITO before determining the merits of the application.
- Again, during the course of the application’s hearing, counsel for Mr Weber expressly confirmed that there was no suggestion of a section 9 Charter breach existing independently of the alleged section 8 Charter breach based on the contention that the warrant should not have been issued.
- The disclosed copy of the ITO, as originally redacted, formed part of the application record filed on behalf of Mr Fuller, and was made an exhibit in relation to the application brought by Mr Weber.
- By way of appropriate additional applications, formal leave to cross-examine DC Lewis in relation to his sworn ITO was sought by counsel for Mr Weber and by counsel for Mr Fuller, and such leave was granted in each case.
- Originally marked simply as an Exhibit for Identification, (when put to DC Lewis in cross-examination), Crown counsel subsequently confirmed the accuracy of the summary as of the date the presentence report was prepared, and to have the document entered as a formal exhibit.
- In the ITO, DC Lewis indicated that, within the sworn document, he was referring to the property covered by that description as “4317 Road 119, Township of Perth East, Perth County”.
- In that regard, DC Lewis described how each confidential informant, prior to being formally registered, would be provided with written indications they were required to review and sign, and verbal indications they were required to reiterate to police, acknowledging that they had been advised of such possible repercussions.
- In that regard, DC Lewis testified that, in his drug investigation experience, it was not unusual to have changes in the direction of “who was supplying whom”. To the contrary, there were often changes in the direction of drug supply between particular individuals, particularly in relation to those engaged in supplying in or receiving drugs in quantities at the mid-to-low level range being described. Frequent factors resulting in such changes included the impact on the conduct of individuals when facing charges for drug trafficking, and the varying business fortunes and/or finances of such trafficking individuals over time. In this case, CS#2 had supplied DC Lewis with additional information about such matters that made the change in direction of drug supply as between Mr Weber and Mr Fuller understandable.
- DC Lewis explained that he personally was not one of the designated OPP personnel with immediate access to the database, and therefore was required to direct a police assistant, (who was one of the designated OPP personnel with access to the relevant database), to enter the query and copy DC Lewis with the resulting report via email.
- Although it was suggested in cross-examination that this did not happen, I accept and find that it did. DC Lewis candidly acknowledged that it arguably should have been in his notes. However, he was quite firm in remembering that it did happen, as Mr Fenwick was someone already known and familiar to him at the time, and the memory stood out accordingly. In my view, the testimony of DC Lewis in that regard was not shaken by further cross-examination, and the officer’s candour in readily acknowledging that he made no observations or retained certain memories about other individuals’ movements made his firm memory about Mr Fenwick’s movements more credible.
- DC Lewis testified that the original document had approximately 19 pages of text, pursuant to the standard template, but that those “19” pages would not have included attached items such as CPIC records and additional photographs.
- Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.
- See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p.278. In this case, there was no challenge to the statute authorizing the search. Nor was there any challenge to the manner in which the search conducted pursuant to the warrant was carried out. The argument in this case was that the search was not lawful because the warrant could not properly have been issued in the circumstances.
- See Hunter v. Southam Inc., supra, at pp.167-168; and Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at pp.446-452.
- See R. v. Debot (1987), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (C.A.), at p.219, affirmed 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p.1166; and R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (S.C.J.), at paragraph 29.
- See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paragraph 51.
- See R. v. Sanchez, supra, at paragraph 20; and R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at paragraph 22.
- See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p.251; and R. v. Sanchez, supra, at paragraph 30.
- See R. v. Araujo, supra, at paragraph 54; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraph 40.
- See R. v. Araujo, supra, at paragraph 59; and R. v. Morelli, supra, at paragraphs 41-43.
- See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at paragraph 56.
- See R. v. Garofoli, supra, at paragraph 68.
- See R. v. Debot, supra, at paragraph 53; and R. v. Garofoli, at paragraph 68.
- Consideration should be given to the currency or “freshness” of information because the focus is on whether there were reasonable grounds to believe that facts probably rather than possibly existed. Reliance on “extremely outdated” information may, (depending on the nature of the particular information), undermine the reasonableness of such an inference or belief. See R. v. Turcotte (1988), 1987 CanLII 984 (SK CA), 39 C.C.C. (3d) 193 (Sask.C.A.); R. v. Jamieson (1989), 48 C.C.D. (3d) 287 (N.S.C.A.); R. v. Colby, [1999] S.J. No.915 (Q.B.); and R. v. Chen, 2007 ONCJ 177, [2007] O.J. No. 1572 (Prov.Ct.).
- See: R. v. Debot, supra, at paragraph 54; R. v. Garofoli, supra, at paragraph 68; R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont.C.A.), a p.490; R. v. Sutherland (2001), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont.C.A.); R. v. Zammit (1993 (1993), 1993 CanLII 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont.C.A.), at pp.120-121; and R. v. Amare, supra, at paragraph 84(2).
- See R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (C.A.), at p. 123.
- See: R. v. Debot, supra, at paragraphs 54 and 59; and R. v. Amare, supra, at paragraphs 8-9 and 84(3). In the absence of any caution as to possible adverse consequences of providing false information, the practical effect of a promise or receipt of consideration in exchange for providing information to police might be motivation to embellish or fabricate. However, the incentive to speculate or manipulate truth is offset by indications of downside risk and legal consequences for doing so. See R. v. Bernabe, [2014] O.J. No. 5617 (Prov.Ct.), at paragraph 24.
- See R. v. Debot, supra, at paragraph 63; R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.), at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66, at paragraph 2; and R. v. Amare, supra, at paragraph 84(4).
- See R. v. Debot, supra, at paragraphs 56-58 and 63.
- See R. v. Debot, supra, at paragraph 53; and R. v. Sanchez, supra, at paragraph 20.
- In forming that view, I am mindful of Crown counsel’s acknowledgement in her written submissions that, considered in isolation at least, the information about the warnings provided to the relevant two confidential informants might exceed the bounds of acceptable “amplification evidence”. In that regard, I should note my view that, even if such evidence was excluded from the totality of circumstances to be considered, in determining whether the circumstances were such that the relevant warrant could have issued, it would not have changed my conclusion set out below. In particular, while excluding that evidence of such prior warnings to CS#1 and CS#2 from consideration would have weakened the reasons for finding the information from the relevant two informants to be credible, there were other considerations supporting their credibility, (noted below), and in my view any resulting weakness in relation to credibility still was sufficiently offset by the compelling nature of the information provided, and the extent to which it was corroborated.
- See R. v. Sadikov, 2014 ONCA 72, at paragraph 86: “In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree.” [Emphasis added.]
- For similar reasons, I am not inclined to excise, from the ITO information to be considered, the indication by DC Lewis that, at the time of the warrant application, he suspected an observed object to be a surveillance camera when information acquired after the fact confirmed that he was mistaken about that. There was no attempt to mislead the reviewing justice in that regard. DC Lewis quite fairly made it clear, in the ITO, that he had only a suspicion – albeit a reasoned one – that the observed object was a surveillance camera.
- See R. v. Rocha, 2011 ONSC 2518, [2011] O.J. No. 1987 (C.A.), at paragraphs 34-36.
- In her submissions, counsel for Mr Weber emphasizes that the police surveillance failed to confirm and describe interactions between those visiting the property, and individuals residing there; e.g., Mr Weber, Mrs Weber and/or Mr Fuller. However, the absence of outdoor interactions between individuals during the described winter months does not seem surprising. I also think it was a reasonable inference that vehicles and cyclists who made the effort to attend the rural property did so for a reason, and were unlikely to travel onto the property and leave without making some effort to interact with the individuals residing there. I also think it was reasonable to infer that those in vehicles travelling to or parking near particular buildings on the property were more likely to have interacted with individuals in those buildings and associated with those buildings, according to other police observations.
- In my view, the information each confidential informant generally was consistent with that provided by the other, the possible exception of the indicated direction in which methamphetamine was said to flow between Mr Weber and Mr Fuller. However, I accept and agree with the explanation, provided and emphasized by DC Lewis, why there actually was no necessary or inherent contradiction between the information provided by CS#1 and CS#2 as to whether Mr Fuller was supplying product to Mr Weber or vice versa. For the reasons explained by DC Lewis, both indications may have been correct and accurate, depending on timing and prevailing circumstances.
