COURT FILE NO.: CR-19-90000890-0000
DATE: 20191017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FADHAL AL-MOLATI AND SHANNON MACDONALD
Accused
Geoffrey Roy, for the Crown
I. Loui Dallas, for Fadhal Al-Molati
Frederick J. Shanahan for Shannon MacDonald
HEARD: September 9, 2019
B.A. Allen J.
REASONS FOR DECISION
(Garofoli Search Warrant Voir Dire, under s 8 of the Charter)
BACKGROUND TO CHARGES
[1] On June 21, 2017 the accused Fadhal Al-Molati and Shannon MacDonald were jointly charged with possession of cocaine for the purpose of trafficking (x2), possession of heroin for the purpose of trafficking, possession of morphine for the purpose of trafficking, possession of marijuana for the purpose of trafficking and possession of proceeds of crime. The morphine later tested as hydromorphone and the indictment was changed accordingly.
[2] The charges arise from search warrants that were executed on June 21, 2017 at 285 Shuter St., Apt. 518, Toronto, 720 Trethewey Rd., Apt. 1804 Toronto, and on a Toyota Matrix licence plate CBYE 765.
[3] At 285 Shuter St. the police seized powder cocaine, crack cocaine, heroin, marijuana, tablets of hydromorphone, phenacetin and Canadian and U.S. currency. The police also seized paraphernalia and items known to be used in drug trafficking.
[4] Mr. Al-Molati was a target of the investigation. He was arrested at 285 Shuter St., Apt. 285. Ms. MacDonald, not a target, was arrested about two hours later when she arrived at the apartment. The other target, Samuel Haile, was arrested and released unconditionally.
[5] Through joint submissions counsel for Mr. Al-Molati and Ms. MacDonald sought the exclusion of the evidence seized by the police. The applicants claim violations of their rights to be protected from unreasonable search and seizure under s. 8 of the Charter of Rights and seek exclusion under s. 24(2) of the Charter.
THE LAW ON A CHALLENGE TO SEARCH WARRANT
Statutory Pre-Conditions
[6] Section 487(1) of the Criminal Code provides the statutory pre-conditions for obtaining a search warrant. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence the police must satisfy the issuing court there are reasonable grounds to believe an offence has been committed or will be committed at the property.
[7] The Supreme Court of Canada has further defined the requirements of the statutory pre-conditions of a warrant. The issuing court must look at whether the police demonstrated reasonable and probable grounds to believe: (a) that an offence was being committed, had been committed or would be committed, and (b) that evidence of the offence would be found at the specified time and place: [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.)].
[8] A voir dire is held to determine the admissibility of evidence. The judge on the voir dire conducts a review of the warrant to determine whether the evidence proposed for admission satisfies the pre-conditions set out in s. 487(1) of the Criminal Code.
[9] In determining whether facts establish reasonable and probable grounds it must be determined what reasonable inferences can be drawn from the established facts. Where innocent and inculpatory inferences are equally consistent on the facts established, these facts amount to “no evidence” to establish reasonable and probable grounds: [Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.J. No. 36 (S.C.C.)].
Confidential Informants
[10] The police in the case before the court acted on information obtained from two confidential informants (“CS1 and CS2”). Strict rules govern the police use of information from informants. Special privilege protects a confidential informant because informants are critical to many police investigations and put themselves at risk if information is disclosed that could identify them. The police and Crown have a positive obligation to protect the identity of a confidential informant as does the court: [R. v. Leipert, 1997 CanLII 367, [1997] 1 S.C.R. 281 (S.C.C.)].
[11] Information in an information to obtain that might potentially identify the informant is redacted to protect the privilege. This gives rise to a question as to how the defence could resist a warrant when information that might be material to a challenge could lay behind the redactions making it inaccessible to the defence for full answer and defence. The countervailing concern is that some or all of the precise and detailed information that is unavailable could identify the informant.
[12] Informer privilege is paramount but sufficient information must be available in the information to obtain upon which the issuing court can assess the credibility and reliability of the informant and the information provided: [R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 215 - 216, (S.C.C.)]. Redaction is a means by which the identity of an informant is protected during the review proceedings. From the perspective of the defence, its ability to test the reliability of the informant and their information, to test the compelling nature of the information and the corroboration of the information may be impaired by the objective of protecting informant privilege.
[13] The information to obtain before this court (“the ITO”) is redacted to a substantial extent. There are redactions of some details of the investigative information that provided the grounds for the police to seek the warrant, redactions of information about the informants and their backgrounds, redactions of information purporting to establish the compelling nature of the information and redactions of information purporting to corroborate the informants’ information.
[14] The Crown takes the position that the removal of redactions would open the door to revealing the informants’ identities. The defence argues the unredacted information related to the informants is insufficient to assess their credibility and reliability and insufficient to establish a justification for the issuance of the warrant.
Rules Governing the Warrant Review Hearing
[15] General principles have been developed to guide the issuing and review courts’ assessment of the warrant at the review level:
• The issuing justice makes their decision whether the statutory pre-conditions have been met from the evidence as a whole, from a common sense, practical not technical approach to the evidence: [R. v. Wilson, 2011 BCCA 252, at para. 52, (B.C.C.A.)]
• The warrant is presumed valid and it falls to the defence to prove invalidity on a balance of probabilities: R. v. Wilson, at para. [63].
• The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewing judge to substitute their view for that of the issuing court: [R. v. Garofoli, [1990] 2 S.C.R. 142, at p. 1452, S.C.C.)].
• The role of the review court is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could — not would — have issued. There has to be some evidence that might reasonably be believed on the basis of which the warrant could have issued: [ R. v. Morelli, at para. 40; R. v. Araujo, [2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 44 and 58, (S.C.C.) and R. v. Garofoli, at para. 1452].
• It is no part of a reviewing judge’s mandate to determine whether they would issue the warrant based on the amplified record: [R. v. Sadikov, 2014 ONCA 72, at para. 88, (Ont. C.A.).
• The reliability of the information must be assessed at the time of the application for a warrant. It cannot be considered ex post facto from the results of the search: R. v. Garofoli, at para. 68 and R. v. Araujo, at paras. [54 – 56].
The Debot Inquiries
[16] The Supreme Court of Canada in R. v. Debot poses three inquiries to be considered when deciding whether the reasonable grounds to believe standard is satisfied, whether the information in an information to obtain is sufficiently reliable to support a reasonable belief. Reliability goes to the accuracy and trustworthiness of the informant and the informant’s information, to be assessed in the totality of the circumstances. The three inquiries are:
a) Was the source credible?
b) Was the information predicting the commission of the offence compelling?
c) Did the police do an investigation to corroborate the information before conducting the search?
[R. v. Debot, at pp. 215 - 216]
[17] The three factors are not to be treated as separate tests. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may to some extent be compensated by strengths in the other two: [R. v. Debot, at p. 215]. Applying the Debot inquiries can pose a challenge in view of the necessity to protect confidentiality over some information in the information to obtain. The review court is required to balance the Leipert informant privilege interest against the interest expressed in Debot of having available sufficient reliable information: [R. v. Learning, [2010] CarswellOnt 5237, at para. 100, (Ont. S.C.J.)].
THE INFORMATION TO OBTAIN
Background Investigation
Police Surveillance
[18] Surveillance began on Mr. Al-Molati, Mr. Haile and the target Toyota on June 7, 2017. The police observed the following:
On June 7th:
• A person matching Mr. Haile’s description was seen leaving the Toyota and entering 285 Shuter shortly before midnight and exiting 285 Shuter two hours later.
On June 17th:
• The target vehicle was seen parked at 720 Trethewey Rd. and at 11:31 a.m. Mr. Haile is seen driving the Toyota and arriving at 285 Shuter two hours later. Mr. Al-Molati is seen boarding the passenger’s side;
• The Toyota is seen continuing on to Oak St. where an unknown male is seen to approach the passenger’s side and engage in what the police believed was a hand-to-hand drug transaction between Mr. Al-Molati and the unknown male;
• The Toyota is driven back to 285 Shuter where Mr. Al-Molati and Mr. Haile are seen walking on the 5th floor toward Apt. 518.
• At 2:13 a.m. Mr. Haile is seen leaving 285 Shuter and picking up an unknown male in the Toyota and proceeding to a restaurant on Dundas St. E. and then dropping off the male at Dundas and Parliament.
• Mr. Haile returns to the rear of 285 Shuter where he is seen with Mr. Al-Molati and Mr. Al-Molati then boards the Toyota and the vehicle drives away.
• The Toyota is misplaced but later returns to 285 Shuter at 3:37 p.m. when Mr. Al-Molati leaves the driver’s seat and goes to the 5th floor of 285 Shuter and returns to the Toyota 12 minutes later at which time he drives back to the restaurant on Dundas St. E. and enters and exits 20 minutes later with what appeared to be a bag of food.
• Mr. Al-Molati picks up Mr. Haile and Mr. Al-Molati moves to the passenger’s seat and at 4:45 p.m. the Toyota is driven back to 285 Shuter.
June 19th:
• The Toyota is seen parked at 720 Trethewey and no other observations are made.
June 20th:
• At 10:45 a.m. the officers observe an unknown female leave 720 Trethewey and board the Toyota where she is seen driving to 163 St. George St. and picking up a male and driving to 285 Shuter and then dropping off the male at the Sherbourne subway. The unknown male is then seen returning to 720 Trethewey a few hours later. The female also returned to 720 Trethewey.
• At 2:15 p.m. Ms. MacDonald is seen walking from 285 Shuter and then she is misplaced at 585 Dundas St. E. This is the only sighting of Ms. MacDonald.
• At 3:00 p.m. Mr. Al-Molati is seen leaving 720 Trethewey and entering the Toyota. He picks up another unknown male at Queen and Sherbourne and is seen going to a BMO at Queen and Saulter and at 4:07 p.m. going into a bar at Queen and Sherbourne.
• Six minutes later Mr. Haile is seen at Moss Park doing what was believed to be two hand-to-hand transactions thought to involve drugs.
• At 4:45 p.m. Mr. Haile returns to the vehicle and drives to 285 Shuter and enters the 5th floor.
• The police received information from Toronto Housing Corporation security that at 7:20 p.m. Mr. Haile met Mr. Al-Molati “in the___of 285 Shuter Street” [sic] and then drove away.
Police Investigative Checks
[19] Police computer searches turned up the following information:
• On May 28, 2017 Mr. Al-Molati and Mr. Haile were occupants of the target Toyota.
• Mr. Haile has a valid driver’s licence with the address 720 Trethewey, Apt. 1804. His previous address was 275 Shuter St., Apt. 319.
• Mr. Haile was the registered tenant of 720 Trethewey, Apt. 1804.
• The target Toyota was registered to Fiory Mehari of 390 Dawes Rd., Apt. 1115.
• Ms. MacDonald was the registered tenant for 285 Shuter, Apt. 518.
[20] Neither Mr. Al-Molati nor Mr. Haile had criminal records. The affiant of the ITO, however, included the following information:
• Mr. Haile is on file for 10 driving offences and as a suspect in a robbery from 2014. The police included synopsis details in relation to that offence including that Mr. Haile was released unconditionally.
• Mr. Al-Molati is recorded as having 13 occurrences including driving offences, liquor licence offences and victim/witness involvement and arrest. An occurrence in 2011 involving drug trafficking is also listed where the affiant after summarizing the occurrence indicated the charges were withdrawn without the affiant providing the reason for the withdrawal.
Information from the Informants As Originally Redacted
[21] In drafting the ITO the affiant relied on information from two confidential informants. The ITO is substantially redacted which in the view of the police is necessary to protect the privilege of the informants. Common to each area of the ITO the source handler’s name is understandably redacted. The following represents the content of the draft of the ITO of the information given by the informants with privileged information redacted. The spaces between the square brackets [ ] indicate where there is redacted information. The words inside the brackets are the summaries of the redacted information in that paragraph. Where there are no words inside the brackets, the Crown submits, to protect privilege, a summary cannot be done.
[22] CS1 gave the following information:
- In [within the last 3 months] 2017 the confidential source advised [handler] of the following:
a) The CS knows a male by the street name Castro, who is [_______] cocaine dealer in the area of Shuter St. and Parliament St.
b) The CS [] handgun [] 2017 and during [] 2017. I [] 2017 the gun []. The gun was [] 2017 the CS [] firearm [______________] nearby apartment building.
c) The CS knows Castro sells crack cocaine in baggies.
d) The source buys crack cocaine from Castro. The source pays [__________] Castro sells [cannot be summarized].
e) The CS purchased cocaine from Castro [date and place of purchase] 2017.
f) [__] his girlfriend []. She is described as female white in her 20s. [Information regarding Al-Molati. Information about 285 Shuter St. Summary is for whole para.].
g) Castro deals drugs with another man who appears to be his right hand man. The source does not know this person’s name but he is frequently seen with Castro. This male is black with a dark complexion.
h) [handler] showed the CS a photo of Al-Molati, who positively identified him as Castro.
i) [handler] showed the CS a photo of Shannon MacDonald who positively identified her [___________].
CS2 gave the following information:
- In 2016 and 2017 the confidential source advised [handler] of the following:
a) The CS knows a drug dealer named Sammy Haile. He has several nicknames. He deals crack cocaine in the area of Shuter St. and Parliament St.
b) He currently drives a small silver Toyota.
c) He deals drugs with a male named Castro.
d) Castro is an ounce level dealer also in the Parliament and Shuter area. He has been dealing crack cocaine in the area for many years.
e) In late 2016 and May 2017 the source saw Sammy in possession [type of handgun] handgun.
f) The CS would see the [cannot be summarized] while a group of people would smoke marijuana in the stairwell of 285 Shuter.
g) Sammy used to live at 319-275 Shuter St. The source was in the unit in 2016 and 2017. Sammy was seen in possession of [________] crack cocaine inside the unit. [more details regarding source seeing Sammy in possession of crack cocaine]
h) [Information about “Sammy”- indicates he is subject of verb “continues”] continues to deal drugs with Castro on Shuter St.
i) [Information about a possible location for drugs. Location is not Shuter St. Date CS received information is provided. CS source of knowledge provided.]
j) The CS has bought [amount] crack cocaine from Castro in the past.
k) [information about Al-Molati and drug dealing – details provided, firsthand information: Info. relates matters within the last 3 months. Crown will argue assists in inference that drugs or evidence in unit 518]
l) The CS knows Castro is dating Shannon MacDonald. [How CS knows information in this paragraph]. Shannon lives in 518-285 Shuter St.
m) The CS provided [handler] a photograph of MacDonald obtained from the social media website “Facebook”.
n) The CS was shown a photo of Haile and Al-Molati. They were positively identified as Sammy and Castro.
THE GAROFOLI STEP 6 PROCEDURE
[23] R. v. Garofoli established a six-step process to be employed in assessing the validity of a wiretap application. These steps have been adapted to challenges to the validity of search warrants. The first five steps involve editing or redacting information in the information to obtain. Step 6 involves the court assessing the sufficiency of the ITO as redacted and determining whether summaries of the individual redacted areas will allow the defence a sufficiently full and fair challenge to the warrant.
[24] It is a function of Step 6 to offer a compromise between having all the redactions on an information to obtain remain intact, which would impede the defence’s ability to challenge the warrant, and all the redactions being removed, which would jeopardize confidentiality: [R. v. Elliott, 2017 CarswellOnt 1153, at para. 53, (Ont. S.C.J.)]
[25] In the case before me the Crown provided the court and defence with a copy of the ITO containing the original proposed redactions. The Crown acknowledged that the substantial redactions would pose difficulty for the defence to challenge the warrant.
[26] The defence agreed and made submissions on the effect of the redactions on the defence’s ability to challenge the reliability of the information in the ITO. The defence took the position that the information available in the redacted ITO was insufficient to advance an effective challenge to the validity of the warrant.
[27] I accepted the parties’ position that the redacted ITO is not sufficient for an effective defence challenge.
[28] The Crown then provided the court and the defence with a pre-prepared Crown’s Summary which summarized certain of the redacted portions of the ITO. There were redacted areas that the Crown submitted could not be safely or meaningfully summarized.
[29] The defence submitted that the Crown Summary did not provide sufficient additional information for the defence to effectively challenge the warrant.
[30] The Crown provided the court with a copy of the unredacted ITO. This of course meant that the defence did not have access to the information the court and Crown had. But this allowed the court to see what the issuing court saw when it issued the warrant. I retired to my chambers to review the Crown Summary together with the unredacted ITO with the view to determining whether further areas of the ITO might be unredacted and whether more details of the redacted areas might be included in the summaries of certain areas.
[31] In reviewing the Crown Summary the court was guided by the Ontario Court of Appeal’s concerns expressed in R. v. Omar about the precariousness of deciding whether the disclosure of certain information in a redacted ITO could identify the informant or narrow the pool of whom the informant might be. Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer: [R. v. Omar [2007] CarswellOnt 218 at p. 255, (Ont. C.A.)].
[32] I returned to court in the presence of the Mr. Al-Molati and Ms. MacDonald and their lawyers. I made discreet inquiries and suggestions to Crown counsel about areas of the redacted ITO that might be revealed. I inquired about additional information that might be added to the Crown Summary.
[33] After conferring with officers involved with the warrant, the Crown agreed that more information could be disclosed of certain redacted areas. The Crown presented a second draft of the Crown Summary. In the below discussion on the Debot inquiries I address the initial summary of redacted areas and the amendments made after discussions in court.
APPLICATION OF THE DEBOT INQUIRIES
The Credibility and Reliability of the Source Information
[34] The reliability of information cannot be established from the information itself. It must be assessed in the totality of the circumstances. This includes consideration of the degree of detail in the information, the source of the informant’s knowledge and indicia of reliability such as past performance or confirmation of the source’s information. The source information must be confirmed by independent police investigation: [R. v. Rocha, 2012 ONCA 707, at para. 16, (Ont. C.A.)]
[35] The credibility of the information relates to the trustworthiness of the source of the information in the information to obtain. This assessment involves consideration of such factors as the source’s motivation, their criminal history and any past history in providing information to the police: [R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 38, (Ont. S.C.J.)]
[36] There are substantial redactions of information that would assist the defence to test the credibility and reliability of CS1’s and CS2’s information. Although there is information stating that the informants had motivations to provide the information, the bases of the motivation are not disclosed for reasons of privilege.
[37] I accepted after reviewing the information that disclosing the details of the motivation could disclose the identities or narrow the pool of persons who might be the informants.
[38] Under the title in the ITO “Confidential Source Current Charges/Criminal Record” there are no particulars of whether or not the informants have criminal records or outstanding charges. Information on a criminal record, depending on the type of charges, could provide a basis to infer trustworthiness and reliability of the information. Crimes of dishonesty are important to consider in this regard.
[39] After the discreet discussion in court the Crown agreed to include the information: “Neither confidential informant has a conviction or any outstanding charges for perjury, obstruct justice or theft type offences.” The absence of a record of such crimes of course is not definitive proof of honesty.
[40] Any previous experience the police have had with information obtained from an informant, whether it led to a successful investigation or not, is important information for a determination of the credibility and reliability of the information provided. I discuss this factor more fully below.
Whether the Informants’ Information is Compelling
[41] The compelling aspect of the Debot framework considers such factors as whether the informant’s information is based on first-hand observations that are reasonably current. Vague or conclusory information based on second-hand hearsay that is not reasonably current would not be compelling: R. v. Greaves-Bissesarsingh, at para. [40].
[42] Regarding both CS1 and CS2, the unredacted ITO states: “The CS is knowledgeable and is vividly aware of the members of the community involved in the drug trafficking and street gang element in the City of Toronto.” This section, in relation to both informants, also states that the information provided has been corroborated by the police. And with both informants the portions of that section which detail the informants’ track records are heavily redacted.
[43] With CS1, the original summary indicates that the informant provided information on one occasion that led to the arrest of a suspect and the seizure of contraband and states that the redacted information indicates how the information was helpful.
[44] With CS2, the original summary indicates the informant provided information several times in the past (more than 5) and that for some of the times the information led to search warrants and subsequent seizures of contraband. The summary indicates details are provided. The summary indicates that in some instances the affiant describes the CS2 information as “leading to the arrest of suspect”. Further details such as how the information “led to an arrest”, or why the information was deemed reliable, are not provided. The amended summary adds the information that there are no times listed where the CS information did not lead to police action or investigation.
[45] I accepted the Crown’s submission that the details of CS1’s track record could identify the informant or narrow the pool of who they might be. The amended summary contains the added point that the status of the case involving information from CS1 is disclosed in the unredacted information.
[46] In the information from CS2, seven subparagraphs of information on the informant’s track record are entirely redacted. I agree with the Crown that the disclosure of that very detailed information could very likely disclose who CS2 is or narrow the pool.
Whether the Informants’ Information was Corroborated
[47] The source’s information need not be absolutely corroborated by the police. The standard is not so high. As the Ontario Court of Appeal observed: “The police will rarely be able to confirm a tip to the extent of having observed commission and that the level of confirmation is not required”: R. v. Greaves-Bissesarsingh, at para. [33]. Only the corroboration of some criminal particular of the offence is necessary to assure the issuance of the warrant: [R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451 (S.C.C)].
[48] The surveillance uncovered mainly sightings of Mr. Al-Molati and Mr. Haile, the latter not an accused in this case. There is only a singular observation of the co-accused, Ms. MacDonald.
[49] The police conducted surveillance of Mr. Al-Molati and Mr. Haile on June 7th, June 17th and June 20th, the latter day being one day before the search warrant was executed on 285 Shuter, Apt. 518. In the surveillance on a whole the police basically saw Mr. Al-Molati and Mr. Haile moving about in the target Toyota from 285 Shuter to 720 Trethewey Rd. and to other locations in downtown Toronto. These included restaurants, bars, a bank and other downtown neighbourhoods. The police saw Mr. Al-Molati and Mr. Haile alternate driving the Toyota.
[50] In one of the neighbourhoods, not Shuter St., where Mr. Al-Molati was located the police observed what they “believed” was a hand-to-hand drug transaction with an unknown male. There is no information as to the police officers’ distance from Mr. Al-Molati that might give some confidence that the police actually saw what they thought they saw. On June 20th the police indicate they saw what they again believed was hand-to-hand drug transactions between Mr. Haile and unknown males in another neighbourhood, not 285 Shuter St.
[51] There is one observation of Ms. MacDonald on June 20th where she is seen walking from the building at 285 Shuter St. ending up at an address on Dundas St. E.
[52] The police computer checks provided little corroborating information. Mr. Al-Molati and Mr. Haile are seen in the Toyota weeks before the warrant was executed. Mr. Haile’s driver’s licence and tenant records connect him to 720 Trethewey Rd. and indicate he had a previous address at 275 Shuter St. The Toyota is registered to a third party, not Mr. Al Molati or Mr. Haile.
[53] The computer checks contain the second reference in the police investigation to Ms. MacDonald. She was found to be the registered tenant of 285 Shuter St., Apt. 518.
ANALYSIS
The Investigation
[54] The law requires that to find a search warrant valid the issuing court must be satisfied by the information in the information to obtain that there are reasonable grounds to believe an offence was being committed, has been committed or will be committed at the property. Importantly, the court must be satisfied that evidence of the offence would be found at the specified time and place.
[55] I do not find that the surveillance conducted over three days in June up to a day before the search warrant was executed provided support for reasonable and probable grounds. On a fourth day the police observed nothing of evidentiary significance. I find the surveillance did not disclose any meaningful information that points to the presence of drugs at 285 Shuter St., Apt. 518 at a point reasonably before the police entered the premises.
[56] That is, as for Mr. Al-Molati, he is seen coming and going in the target Toyota from the building at that address a few times over the three days. The police did not see him enter Apt. 518. They saw him walking on the 5th floor in the direction of Apt. 518. Most observations were made of Mr. Al-Molati at locations other than the target address. There were no sightings by the police of any drug activity by Mr. Al-Molati or anyone else around Apt. 518. There was only a suspicion by officers of seeing Mr. Al- Molati and Mr. Haile on unconnected occasions and times doing hand-to-hand drug transactions in neighbourhoods other than Shuter St.
[57] Regarding Ms. MacDonald, I find it is of no consequence in establishing reasonable and probable grounds that the police observed her on one occasion leave 285 Shuter St. and walk to an address on Dundas St. E.
[58] I find the computer checks did not provide support for reasonable and probable grounds in respect to the requisite location element. The information is weak, neutral or irrelevant. The only information that has a semblance of relevance is the detail that Ms. MacDonald is the registered tenant of Apt. 518, 285 Shuter St. That information does not establish that she resides there and the surveillance provided no support for her spending a great deal of time there or residing there.
[59] I do not find the evidence provided by the confidential sources sufficiently establishes the requisite temporal element, evidence of a crime being committed, having been committed or going to be committed in the future.
[60] I recognize that the information provided by the informants is firsthand, not second hand hearsay passed on to them by third parties. This would tend to lend strength to the information in the right circumstances. However, without disclosing the details of privileged information on the temporal and location elements, I do not find that the information from CS1 and CS2 together is sufficiently proximate in time or place to confidently infer that there would be drugs inside Apt. 518 on June 21, 2017 when the police entered on the warrant. There are other viable ways to look at the information in this area other than to conclude drugs are inside the apartment. The police investigation does not assist. That information finds Mr. Al-Molati more often than not away from the target address and is only seen entering and exiting on a few occasions with no apparent involvement in criminal activity at those times.
[61] I am required to look at each area of evidence I consider in the context of the totality of the evidence. I will therefore move on to evaluate the informants’ information in view of the Debot inquiries.
The Confidential Information Related to the Debot Inquiries
[62] The court is faced with an ITO with substantial redactions of information provided by two confidential sources in areas that could establish the credibility and reliability of the evidence and provide compelling support for reasonable grounds to believe. This presents a challenge for the court in deciding the validity of the warrant as the court, as it is required to do, references information not available to the defence but available to the Crown. A decision of this court well states the predicament:
The extensive editing of [the officer’s] grounds in the case at bar was driven by the fact “Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity”, as McLachlan J. (as she then was) put it in Leipert, supra, at p. 393. The conundrum in which the police and Crown find themselves, in cases like the one at bar, is that Debot and s. 9 require disclosure of the informer's means of knowledge and disclosure of as much detail as possible, as well as past history of reliability. The more that these matters are disclosed the more likely it is that the tip will rise to the statutory and constitutional standard of reasonable and probable grounds. And yet the more these matters are disclosed, the more likely it is that the details and the means of knowledge will implicitly identify the informer.
[R. v. Learning, [2010 ONSC 3816, [2010] O.J. No. 3092, at para. 100, (Ont. S.C.J.)]
[63] As Debot instructs, when weighing the three factors they are not to be treated as separate tests. The information related to each of the three factors is often quite interrelated. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two.
Reliability and Credibility of Informants and Their Information
[64] On this inquiry I considered that the informants particularly CS2 provided substantial detail about their observations of the movements and conduct of Mr. Al-Molati and his cohort, Mr. Haile. This bodes in support of the strength. The source of the informants’ knowledge is firsthand which also points to reliability. Both informants, especially CS2, have a sizeable successful past track record of experience in providing fruitful information in previous police investigations which again leans toward reliability of their information.
[65] One indicia of credibility is whether or not a source has a criminal record and the nature of any criminal record if one exists. Whether or not the informants have criminal records is privileged information in this case. However, the information available that the informants have no convictions or outstanding charges related to crimes of dishonesty such as fraud, forgery or theft of any kind while not determinative is a point in favour of credibility.
[66] Another consideration on credibility is the informants’ motivation for providing the information to the police. The fact that the informants were motivated to provide information is not privileged but the nature of the motivation is. Motivation has been regarded as a factor that can tend to adversely affect credibility due to the element of self-interest behind giving the information: [R. v. Bissesarsingh, at para. 38]
The Compelling Nature of Informants’ Evidence
[67] Firsthand detailed information that is reasonably current can be regarded as compelling depending on the context in which the information is provided. The Court of Appeal commented on a circumstance where the source’s information was compelling:
Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent's brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip.
[68] CS1 gives the detail that s/he knows Mr. Al-Molati by name and nickname and that s/he buys crack cocaine from Mr. Al-Molati. CS1 also indicates how Mr. Al-Molati packages the drugs and indicates a date and place of a purchase. However, without disclosing the privileged information in paragraph 1(e) of the ITO, I find the information does not compel the inference that drugs would be located inside the apartment unit at the target address. An exculpatory inference on reasonable belief could be drawn. Even considering the redacted information the detail provided by CS1 does not approximate what is described above in the Rocha case.
[69] Most of the information CS2 provides focusses on Mr. Haile. CS2 indicates he knows Mr. Al-Molati by name and provides the information that Mr. Al-Molati deals drugs with Mr. Haile. CS2 also provides information that he has bought crack cocaine from Mr. Al-Molati. CS2 provides information about Mr. Al-Molati’s drug trafficking operation saying that Mr. Al-Molati is an ounce-level dealer in crack cocaine and that Mr. Al-Molati has been dealing crack cocaine in the area of Parliament and Shuter Streets for many years. Again without disclosing privileged information in a particular area in paragraph 2(k) about drug dealing, I find it is not reasonable to infer from the information that drugs would be present inside Apt. 518 at 285 Shuter St. Another exculpatory inference could reasonably be drawn from that information. CS2’s information does not approximate the compelling nature of the information in Rocha.
Corroboration of the Informants’ Information
[70] I have already addressed the deficiency of the police investigation in corroborating the informants’ information about Mr. Al-Molati’s drug dealing and the failure of the investigation to establish the reasonable grounds to believe that drugs would be found at the target address. The surveillance and the informants’ information together do not satisfy the statutory objectives.
Conclusion on the Debot Inquiries
[71] After applying the three Debot inquiries in the context of the totality of the evidence, I find there is insufficient evidence to support a finding that the warrant could issue. I find the weaknesses in the information purporting to establish the credibility and reliability of the two informants, the failure to include sufficient compelling information in the ITO, together with the absence of meaningful corroboration of the allegations of criminal activity in the target address undercut the value of the information on a whole. I conclude on the totality of the evidence there is insufficient reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.
DISPOSITION
[72] Since I found the information in the ITO did not satisfy the Debot criteria, there is insufficient support for a reasonable belief of Mr. Al-Molati’s, and more so, Ms. MacDonald’s involvement in criminal activity in connection with the target address. There were no legitimate grounds to search 285 Shuter, Apt. 518 and arrest Mr. Al-Molati and Ms. MacDonald. The arrests, search of the premises and the seizure of drugs and money were therefore unlawful.
B.A. Allen J.
Released: October 17, 2019
COURT FILE NO.: CR-19-90000890-0000
DATE: 20191017
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FADHAL AL-MOLATI AND SHANNON MACDONALD
Accused
REASONS FOR DECISION
B.A. Allen J.
Released: October 17, 2019