R. v. Robert Riordan, 2019 ONSC 758

Court File and Parties

COURT FILE NO.: 17-630

DATE: 2019/01/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Robert Riordan

BEFORE: Justice I.F. Leach

COUNSEL: Frances Brennan, for the Crown Nicholas Wansbutter, for the accused

HEARD: December 5, 2018

ENDORSEMENT

Introduction

1The accused in this matter, Robert Riordan, is charged with a number of offences, namely:

• i. one count of possessing methamphetamine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, S.C. 1998, c.19, (the “CDSA”);
• ii. one count of possessing hydromorphone for the purpose of trafficking, contrary to s.5(2) of the CDSA; and
• iii. one count of storing ammunition in a careless manner without lawful excuse, contrary to s.88(1) of the Criminal Code, R.S.C. 1985, c.C-46, (“the Code”).

2By way of a proper pre-trial application, he seeks:

• i. a finding that there has been a contravention of the rights guaranteed to him 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”; and
• ii. a ruling excluding, at trial, pursuant to s.24(2) of the Charter, evidence seized from a residence at 25 Ash Street, in the city of Stratford, during execution of a CDSA search warrant on March 7, 2017.

3In that regard, the applicant contends that, on its face, 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 Crown)¹, information sufficient to justify the warrant being issued; i.e., information sufficient to raise a reasonable credibly-based probability that the proposed search would yield evidence of trafficking in methamphetamine and hydromorphone as alleged.

4The applicant says the resulting search warrant accordingly was invalid, that the resulting search was presumptively unreasonable, and that there accordingly was a breach of the rights guaranteed to him pursuant to section 8 of the Charter. He also says that the evidence obtained via the search, conducted pursuant to the search warrant, therefore should be excluded pursuant to s.24(2) of the Charter, as its admission would bring the administration of justice into disrepute.

5The Crown contends that, even in its slightly redacted form, the ITO contained reliable evidence that might reasonably be believed, on the basis of which the search warrant authorization could have issued.

6The Crown accordingly submits that, as the search was conducted pursuant to a valid warrant, it was not unreasonable, and there accordingly was no breach of the rights guaranteed to the applicant by section 8 of the Charter. In the alternative, the Crown submits that, if there was a section 8 breach, s.24(2) of the Charter does not warrant exclusion of the evidence in the circumstances.

7Before turning to a more detailed consideration of the relevant underlying background to this matter, I think it useful to outline a number of general principles which govern such applications.

General principles – Section 8 of the Charter and prior search authorizations

8General 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.²
• 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.³
• Pursuant to s.11(1) of the CDSA, a justice who, on an ex parte application, is satisfied by information on oath that there are “reasonable grounds to believe” that a controlled substance, anything in which a controlled substance is contained or concealed, offence-related property or anything that will afford evidence in respect of an offence under the CDSA is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, property or thing and seize it.
• Like s. 487(1) of the Code, s.11(1) of the CDSA accordingly 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.⁴
• 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.⁵
• So long as a sworn ITO meets the requisite legal norm, there is no need for it to be excessively lengthy or detailed. All it must do is set out the facts fully and frankly for the authorizing justice, so that he or she can make an assessment of whether the said facts rise to the standard required in the legal test for issuing the search warrant, and authorizing the intended search. Ideally, an ITO affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation.⁶
• It is also important to appreciate that search warrants are statutorily-authorized investigative aides typically issued before any criminal proceedings have been commenced, and that the ITO affidavits sworn to obtain them almost invariably are drafted by police officers, often operating under tight time constraints and without the assistance of any legal advice. Courts accordingly have recognized that it is unrealistic and inappropriate to measure the quality of drafting of such documents by the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings. In short, “reasonable latitude” should be accorded to the drafter of an ITO in considering the precision of the language that was used in the document. Few search warrant applications are perfect.⁷
• Those swearing ITO affidavits also may reasonably rely on hearsay. In that regard, while such affiants may not ignore signs that others providing information may be misleading them or omitting material information, they also are not required, in the absence of some indication that something is amiss, to conduct their own investigation to confirm the accuracy of such hearsay information.⁸
• Moreover, 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. Furthermore, some deference should be paid to the ability of a trained police officer to draw inferences and make deductions which might well elude an untrained person.⁹
• 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.¹⁰
• 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. Said another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.¹¹
• 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, 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 a 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.¹²
• 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 the totality of the circumstances and 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.¹³

9In determining whether reasonable and probable grounds exist to carry out a search, police 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.¹⁴
• 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.¹⁵
• In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current; 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.¹⁶ A tip can be compelling even if it contains some inaccuracies.¹⁷
• 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.¹⁸
• 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.¹⁹
• 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).²⁰
• Although 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.²¹

10With the above principles in mind, I turn next to a review of relevant underlying circumstances in this particular case.

Background

11On March 7, 2017, Detective Constable (or “D.C.”) Josh Nahrgang of the Stratford Police Service applied, pursuant to section 11 of the CDSA, for a “Telewarrant to Search” the aforesaid residence at 25 Ash Street in the city of Stratford, along with its detached garage.

12At the time of swearing an ITO in support of the aforesaid warrant application, D.C. Nahrgang was an experienced drug enforcement officer. Without limiting the generality of the foregoing, at the time of swearing the ITO, he had been a police officer for almost 7 years, two of which had been spent working exclusively as a member of the “Street Crime Unit” (or “SCU”) of the Stratford Police Service, where he dealt primarily with drug related offences, as well as offences relating to firearms and property crimes. Detective Nahrgang’s experience within the SCU was such that, in relation to this particular drug investigation, he was acting as the lead investigator.

13In his sworn ITO, D.C. Nahrgang outlined, in addition to his aforesaid qualifications and experience, information and reasoning which in his view formed reasonable and probable grounds to believe the applicant had committed offences contrary to ss.5(1) and 5(2) of the CDSA, (i.e., trafficking in methamphetamine and hydromorphone, and possession of both narcotics for that purpose), and that the proposed search would lead to the finding of evidence in that regard. That information and reasoning included the following:

• In February of 2017, the SCU received information concerning the applicant from a confidential informant, (or “C.I.”), who provided information to police in circumstances involving a promise that his or her identity would be “kept secret”.²² To that end, D.C. Nahrgang expressly tried, in his ITO, to provide relevant and material elements of the C.I’s background while avoiding specifics which might tend to identify him or her. In that regard:
  • The relevant C.I. is an admitted user of controlled substances, and has a criminal record for drug-related offences – but no criminal record for “acts of deceit”.²³ He or she is “immersed in the drug and criminal subculture” of Stratford, and is “well aware of others who are committing criminal and drug offences”.
  • The relevant C.I. had been entered into a registry of “confidential human sources” maintained by the Stratford Police Service, and assigned a number. He or she thereafter was “handled” by D.C. Michael Weyers.
  • By March of 2017, the relevant C.I. had been providing information to D.C. Weyers for more than a year, and had had more than 20 contacts with D.C. Weyers during that time.
  • Information provided by the C.I. had been corroborated through previous independent investigation, and was found to be accurate and reliable. In particular, it had resulted in the arrests of people wanted on warrants, and of more than three people for criminal and drug offences. It also had led to seizures of controlled substances, including methamphetamine.
• The information supplied to the SCU by the relevant C.I., via D.C. Weyers, in February of 2017, included the following:
  • Rob Riordan was living at 25 Ash Street, although “Dan” owned the house;
  • Rob had pills and was selling them;
  • Rob Riordan had methamphetamine, and was selling methamphetamine;
  • Rob also had “a lot of weed”; and
  • Robert Riordan was trafficking pills, marihuana and methamphetamine from the garage located on the property at 25 Ash Street in the city of Stratford”, and also kept a “larger stash of drugs” in his room located inside the house on the property.²⁴
• On March 7, 2017, the SCU followed up on the C.I. information outlined above by conducting a number of inquiries relating to Mr Riordan, using available “C.P.I.C” and “P.A.R.I.S.” databases.²⁵ Those inquiries provided the following additional information:
  • The C.P.I.C. database indicated that Mr Riordan had a dated criminal record, including convictions for arson, production of a controlled substance and unauthorized possession of a firearm. Given the nature of his criminal record, Mr Riordan also was “flagged” on the database with a “V”, for “violent”.
  • The P.A.R.I.S. database indicated that Mr Riordan was a class “GM” licenced driver in Ontario, and that as of July 2015, his residential address was 343 Andrew Street, in the Town of Exeter.
• The SCU also followed up on the C.I. information outlined above by carrying out further investigation in relation to the indicated address of 25 Ash Street, in the city of Stratford. In that regard:
  • The relevant residence was found to be located on the south side of Ash Street, in the city of Stratford. In particular, it was located on the southeast corner of the intersection of Ash Street (running east-west) and Nelson Street (running north-south), in the city of Stratford. The house on the property was a white 1½ story residence, the north/front side of which faced onto Ash Street. Located to the rear of the house, (and its rear entrance), was a fully detached garage, the driveway for which opened on to Nelson Street.
  • On the evening of Tuesday, March 7, 2017, the SCU set up surveillance in relation to the property, resulting in the following observations and developments:
    • At 5:00pm, a male whom the police were able to recognize or otherwise identify as Kody Kane proceeded up the driveway to the property.
    • At 5:11pm, another male, whom the police were able to recognize or identify as Bevan Simpson, arrived driving a black Chevrolet vehicle with a noted plate number, and proceeded up the property’s driveway.
    • At 6:08pm, another male, whom the police were able to recognize as Bill Sneddon, drove his Jeep to the property and pulled up in front of the house. An individual came down the lane from the property and got into the Jeep, after which Mr Sneddon was observed driving an unknown passenger.
    • At 6:11pm, a “Male”, once again identified as Kody Kane, (a “known drug user”), proceeded out and away from the property to meet up with another individual the police were able to recognize as Jessica Bernier. A relatively short time later, at 6:22pm, that “Male”, (i.e., Kody Kane), was arrested by the SCU at the Rosecourt Motel in Stratford and found to be in possession of a “dime bag” containing two orange hydromorphone pills and 1 gram of methamphetamine.²⁶
    • At 6:25pm, Mr Sneddon’s Jeep returned to the front of the house. Mr Sneddon and a passenger got out of the vehicle and proceeded up to the residence.
    • At 6:31pm, two individuals, who were unknown to the police, proceeded up the property’s driveway on bicycles.
    • At 6:41pm, Mr Sneddon proceeded down the driveway and then to his vehicle, before driving away from the property.
    • At 7:10pm, Mr Simpson and Mr Riordan were seen getting into a truck, which then drove away from the property.
    • At 7:15pm, an unidentified male was seen proceeding from the garage to the back door of the house, and then back to the garage.
    • At 7:16pm, a truck with a “topper” came “back” to the property. A passenger, Mr Riordan, got out of the vehicle and went into the garage. A minute later, (i.e., at 7:17pm), the truck then drove away from the property in a southbound direction.²⁷
    • At 7:39pm, Mr Riordan was seen entering the house, (using a set of keys to open its back door), before he then came back to the “shop”; i.e., the garage.²⁸
  • In the ITO, D.C. Nahrgang indicates no less than four times, in four different places of the ITO telewarrant application, (i.e., on page 2 of the ITO itself, and again at paragraphs 13, 22 and 33 of Appendix C to the ITO), his belief that the aforesaid surveillance observations, were consistent with drug trafficking at the property. In that regard, D.C. Nahrgang relied in particular on the fact that people were coming and going from the property after short visits and at night, when drug dealers “mainly deal their drugs”.
• Given the totality of the circumstances, including the information outlined above, D.C. Nahrgang indicated his subjectively held view that there were reasonable grounds to believe that the applicant was engaged in trafficking methamphetamine and hydromorphone, possessed both narcotics for that purpose, and that a search of the aforesaid Stratford residence at 25 Ash Street and its detached garage would provide specified evidence in that regard. In doing so, the detective also noted and emphasized that, since evidence of drug trafficking inherently was short lived, it was more likely to be gone if the requested telewarrant was not executed that night.

14It is not disputed that the requested search warrant was signed and issued by Justice of the Peace Moffat at approximately 9:45pm on March 7, 2017, and executed by the police approximately 24 minutes later.

15Nor was it disputed that, in the course of carrying out a search pursuant to the warrant, police located and seized the following illicit narcotics and items believed to be drug-related:

• three orange 12mg hydromorphone pills;
• 30mg, 12mg and 5mg capsules of hydromorphone;
• one additional 12mg hydromorphone pill, found in a tin alone with 2 grams of methamphetamine;
• a further 15.1 grams of methamphetamine;
• forty 60mg morphine pills;
• small amounts of marijuana and “shatter”, (i.e., cannabis resin);
• two cellular telephones; and
• $280.00 in Canadian currency.

16During the course of the relevant search, police also located and seized the following weapons and ammunition:

• one compact crossbow loaded with an organ bolt, along with two spare bolts;
• one black .22 calibre “Volcanic 22” six shot revolver, along with eleven .22 calibre bullets;²⁹
• a black tool bag containing knives, throwing knives and machetes; and
• one black ATI Ruger .22 calibre folding stock rifle recoil system.³⁰

Assessment

17With the above legal principles and circumstances in mind, I turn next to an assessment of Mr Riordan’s application on its merits.

18I begin with a number of preliminary observations in that regard.

19First, I note that the Crown took no issue with Mr Riordan’s standing to bring the application. To the contrary, Crown counsel readily acknowledged that, pursuant to the Supreme Court of Canada’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, Mr Riordan is entitled to rely on the Crown’s theory of the case to assert standing – and in this case, the Crown asserts that Mr Riordan was living in the house at 25 Ash Street, Stratford, and using both the house and its detached garage to traffic in illicit narcotics.

20Second, there also was no dispute that, as a search warrant issued by a judicial officer is presumptively valid, and a search carried out in reliance on such a warrant is presumptively reasonable, the applicant bears the onus of demonstrating that the warrant in this case should not have been issued and that the resulting search was unlawful.

21Third, counsel confirmed from the outset that such questions were to be determined having regard to the ITO alone, redacted only to the extent that Appendix “D” containing the particulars of the relevant C.I.’s criminal record had been removed. In other words, the matter was restricted to a “facial validity” challenge to the warrant’s validity, without any suggestion that exclusion or amplification was necessary or appropriate. In other words, the facial validity challenge made to the warrant’s validity turned on adequacy rather than accuracy.

22Fourth, in terms of assessing the issued warrant’s validity, counsel for Mr Riordan acknowledged and confirmed that there is no question D.C. Nahrgang subjectively or personally believed in the accuracy and credibility of the grounds of belief he identified and relied upon in applying for the relevant search warrant.

23In the result, my assessment of the issued warrant’s validity, (in turn effectively determining whether the ensuring search conducted pursuant to the issued warrant breached the rights guaranteed to Mr Riordan pursuant to section 8 of the Charter), accordingly will focus on whether, having regard to the information set forth in the redacted ITO, 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.

24I find that there was.

25In particular, in my view, it was open to the justice of the peace to conclude, from a consideration of the contents of the redacted ITO, together with reasonable inferences arising from that information, that there were reasonable grounds to believe:

• that the applicant was trafficking in methamphetamine and hydromorphone from 25 Ash Street in Stratford, and was in possession of the two narcotics for that purpose; and
• that a search of that property, (including its house and detached garage), would yield evidence of those offences.

26My reasons in that regard include the following:

• As emphasized by counsel for Mr Riordan, the information provided by the relevant C.I. lacked a number of details provided by confidential informants in other reported drug cases. For example, there were no details offered as to the source or packaging of narcotics allegedly sold by Mr Riordan, the precise quantities of drugs supposedly sold or the identities of purchasers involved, or any predictive indications as to when further trafficking activity was expected to occur. Nor was there any indication as to whether or not the information was based on first-hand observations, or how the informer acquired the information. In my view, however, aspects of the information provided by the relevant C.I. were nevertheless compelling, insofar as they went beyond bald conclusory statements to provide specific information and details. In particular:
  • The location of reported drug trafficking and possession by Mr Riordan was narrowed to very specific locations. In that regard, the C.I. not only identified a specific property, (i.e., 25 Ash Street in the city of Stratford), but went further to indicate that Mr Riordan was using the property’s garage and house to commit the alleged offences; i.e., trafficking primarily from the garage while keeping a “larger stash” of narcotics in “his” room inside the house.
  • The C.I. was indicating that Mr Riordan not only used the property at 25 Ash Street for trafficking and drug possession, but that Mr Riordan also now lived there even though the property was owned by someone else; i.e., “Dan” – whom the police apparently later identified as Dan Shean. That information had an added potential significance, insofar as it suggested the C.I. was in possession of particular recent information at odds with publicly maintained records available to the police, indicating that Mr Riordan had been living in the town of Exeter as of July, 2015.³¹
  • The C.I. was indicating that Mr Riordan was not only engaged in drug trafficking and possession, but also dealing in multiple illicit narcotics.
  • The C.I. was able to specify at least some of the narcotics in question by name or description/form: i.e., methamphetamine, “weed” (marihuana), and what appeared on its face to be a third and separate type of controlled substance, insofar as neither methamphetamine nor marihuana usually take the form of “pills”. In that regard, counsel agreed, during the hearing before me, that the C.I.’s provision to the police of information concerning Mr Riordan’s selling of “pills” permitted a reasonable inference that the pills in question were another illicit drug; i.e., as opposed to pills containing some form of non-controlled substance, such as vitamins or over-the-counter medications.
  • The C.I. also was providing at least some informal indication of the relative quantities of narcotics said to be possessed by Mr Riordan, insofar as Mr Riordan was said to have “a lot of weed”.
• Counsel for Mr Riordan also emphasized that certain information concerning the credibility of the relevant C.I. was lacking or unclear in this particular case. For example, it was noted that there was no indication as to whether or not the information provided to the police stemmed from first hand observations; that there was a lack of clarity as to whether the C.I. had provided the police with information during each of the 20 contacts described; that there was a similar lack of clarity as to the precise number of occasions on which information from the C.I. had been corroborated, or whether the occasions involving arrest of individuals on arrest warrants, the arrest of individuals for criminal and drug offences, and the seizure of controlled substances were unrelated; and that the precise number of occasions on which the informant had provided corroborated information relating to controlled substances was uncertain. Moreover, no information was provided concerning the possible motivation of the C.I. to supply information to the police, such as promises of monetary reward or possible favourable consideration in relation to charges that may have been pending against the informant. Nor was it made precisely clear what D.C. Nahrgang may have meant when he indicated that the criminal record of the relevant C.I. contained no “acts of deceit”. Notwithstanding such noteworthy limitations, in my view there nevertheless was information provided to support an inference that the C.I. in question was credible. In particular:
  • In contrast to an anonymous tipster, the identity of the C.I. in question was known to the SCU, thereby inherently exposing the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police through the provision of false information.
  • The C.I. was noted to be immersed in the criminal and drug subculture, and an admitted user of controlled substances. He or she therefore inherently was more likely to move in circles where access to information about drug traffickers and their trafficking activity would come into his or her possession.³²
  • Although D.C. Nahrgang himself was not personally familiar with the identified informant, another member of the SCU, (D.C. Weyers), had been working with the informant for over a year, and had continued to have contact with the informant on more than 20 occasions. In my view, that continued contact with the relevant C.I. over such a lengthy period inherently warrants an inference that his or her handler, (D.C. Weyers), felt the effort to be useful and productive in terms of investigating and addressing criminal offences.
  • The C.I. in question was not “untested”, in terms of having his or her information examined, corroborated and confirmed on previous occasions. To the contrary, the SCU felt that the relevant C.I. had proven to be reliable, insofar as his or her information had resulted in the arrest of “people” (i.e., more than one person) wanted on arrest warrants, the arrest of more than three people for criminal and drug offences, and the seizures (plural) of controlled substances, including methamphetamine. In my view, even if that indication is read narrowly to interpret some of the reported indications as overlapping, (e.g., by a person wanted on an arrest warrant being located through his or her arrest for a separate criminal offence such as possession of a controlled substance, in respect of which that controlled substance was then seized), a fair reader of the ITO is still left with an indication that information provided by the relevant C.I. has been corroborated and/or confirmed to be accurate on at least three occasions.
  • Although D.C. Nahrgang does not indicate precisely what he means by “acts of deceit”, (e.g., to make it clear whether he is referring to particular crimes such as perjury, fraud or obstruction of justice, or something else), in my view a fair reading of the ITO is that the detective reviewed the relevant criminal record of the C.I. to see if it provided any indication of past dishonesty, and found nothing of concern in that regard.
• In my view, although the follow up investigation described by D.C. Nahrgang was not extensive, and the reported surveillance apparently was confined to one operation lasting approximately 2 hours and 39 minutes, in my view the SCU had in fact been able to obtain information corroborating significant aspects of the relevant C.I.’s information by the time of the search warrant application. In particular:
  • The police were able to observe and confirm that Mr Riordan did indeed have a physical presence at that very specific property, (i.e., 25 Ash Street), within the city of Stratford.
  • The police were able to observe and confirm that Mr Riordan was accessing not only the house on that property, but also its garage.
  • The police were able to observe and confirm that Mr Riordan had the apparent ability to exit and enter the house and garage unescorted, using a set of keys to enter the house. In my view, that in turn warranted a legitimate inference that Mr Riordan had control and access to the house and garage consistent with his living there, instead of at the Exeter address indicated on his driver’s licence.
  • Although counsel for Mr Riordan questioned whether the surveillance observations of arrivals, departures and movements of various individuals in relation to 25 Ash Street established any “pattern” or observations of significance, in terms of corroborating information provided by the relevant C.I., I think it did. In that regard:
    • Even if one assumes that Mr Sneddon always had the same passenger in his vehicle on the night in question, and that the male observed at 7:15pm was one of the unknown males noted earlier in police observations, by my count there were a minimum of six males other than Mr Riordan seen travelling to, from and around the property that evening, which seems unusual for a Tuesday evening in March.³³
    • I think it noteworthy that the majority of visitors arriving at the home during the period of surveillance generally did not proceed to or use the front entrance of the house facing Ash Street, but instead travelled directly into, up and/or down the drive, (on foot, on bicycle, or in vehicles), and therefore towards or from the area of the detached garage from which, (according to the C.I.), Mr Riordan was selling drugs.
    • I am mindful of the reality, noted above, that the inference of drug trafficking, drawn from such observed activity, was made repeatedly by an experienced drug enforcement officer, whose opinion in that regard is entitled to a degree of deference. Again, as our appellate courts frequently have emphasized, movements that may seem innocuous and innocent to a lay person may very well take on added significance when viewed through the eyes of an officer who has significant training and experience with drug investigations.
  • At least one of the individuals seen leaving 25 Ash Street was arrested a relatively short time later at the Rosecourt Motel, and was found to be in possession of a dime bag containing two orange hydromorphone pills and 1 gram of methamphetamine; i.e., a combination of controlled substance “pills” and methamphetamine corresponding in significant measure to the described variety of narcotics in which, (according to the C.I.), Mr Riordan was said to be trafficking from 25 Ash Street. In that regard:
    • The ITO does not make it clear that the relevant male - apparently Mr Kane - was kept under constant surveillance between his departure from the Ash Street property and arrival at the Rosecourt Motel, and/or that he was arrested before entering into that motel. In other words, the ITO does not expressly indicate that Mr Kane was monitored and arrested in circumstances negating the possibility that he may have retrieved the drugs found in his possession from some other person or location between his departure from 25 Ash Street and the time of his arrest. To the contrary, the surveillance observations seem to indicate that Mr Kane actually did meet up with at least one other individual, (Ms Bernier), after leaving the Ash Street property but before his arrest at the Rosecourt Motel.
    • Nor does the information set forth in the ITO negate the possibility that Mr Kane already may have had the relevant narcotics on his person prior to his visit to 25 Ash Street.
    • However, for the reasons noted above, it needs to be remembered that, in the context of determining whether there were reasonable grounds for the warrant to issue, it is not necessary for the police to confirm commission of the alleged crime itself; e.g., in this instance, that the hydromorphone pills and methamphetamine found in the possession of Mr Kane, when he was arrested at the Rosecourt Motel, definitely were sold to Mr Kane by Mr Riordan. While the ITO information may not rise to the level of proof beyond a reasonable doubt in that regard, in my view it is still evidence capable of providing a measure of corroboration of the relevant C.I.’s information, and credibly-based probability in that regard.

27As noted above, the police also had confirmed that Mr Riordan had a criminal record, (albeit dated), that included a conviction for production of a controlled substance. In other words, he was an individual with a confirmed history of past involvement with illicit drugs.

28In my view, viewed properly in its totality, (rather than a parsed fashion emphasizing possible frailties of individual considerations viewed in isolation), the information provided to the justice of the peace in the ITO sworn by D.C. Nahrgang went beyond mere suspicion, conjecture, hypothesis or a fishing expedition; i.e., in terms of the detective’s stated subjected belief that Mr Riordan was trafficking in methamphetamine and hydromorphone, that Mr Riordan possessed both narcotics for that purpose, and that a search of the property at 25 Ash Street, in the city of Stratford, (including the property’s house and garage), would disclose evidence supporting Mr Riordan’s commission of those offences.

29In particular, I think a reasonable person, standing in the shoes of D.C. Nahrgang, with his experience and training, and with similar access to all of the information described above, would have believed that the facts probably existed as asserted, and have drawn the same inferences submitted by D.C. Nahrgang in his sworn ITO. They were not the only inferences that could have been drawn, but they were reasonable inferences.

30There was, in turn, sufficient credible and reliable evidence before the justice of the peace to permit that judicial officer to find reasonable grounds to believe that the alleged offences had been committed, and that evidence of those offences would be found at the specified time and place or places identified by D.C. Nahrgang.

31Having 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.³⁴ There accordingly was no violation of the rights guaranteed to the applicant by section 8 of the Charter.

32In the circumstances, there is no need to consider application of s.24(2) of the Charter.

Conclusion

33For the reasons outlined above, the application is dismissed.

“Justice I. F. Leach”

Justice I.F. Leach

Date: January 30, 2019

• While the ITO provided to the judicial officer who issued the warrant included “full details” of the criminal history of a confidential informant relied upon by the SCU and D.C. Nahrgang, (in forming what the officer believed to be reasonable and probable grounds to believe CDSA offences had been committed by the accused, and that evidence of the suspected offences would be found at the relevant address), the original Appendix “D” containing that information was omitted from the form of the ITO disclosed to the applicant and his counsel, thereby effectively redacting the ITO to that extent.
• There was no suggestion by defence counsel that confidential informant privilege did not apply to the redacted information, or that any corresponding non-disclosure of that information 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.
• There was no suggestion by the defence that the redacted ITO contained any misinformation or misleading information that needed to be excised prior to consideration of whether the warrant could have been granted.
• Crown counsel, in turn, did not seek to amplify the information in the redacted ITO in any way.
• Defence counsel and Crown counsel were instead content to have the validity of the relevant CDSA warrant, and corresponding reasonableness of the resulting search, determined exclusively on the basis of the redacted ITO information.

• Although counsel for Mr Riordan suggested that the information in paragraph 12 should be characterized as mere introductory comments rather than substantive information relevant to whether the warrant should be issued, the reality is that all of the ITO content is sworn information provided by D.C. Nahrgang.
• Nowhere in paragraph 19 of the ITO, or in the heading immediately preceding it, is there any indication that it was intended to provide an exhaustive and entirely self-contained summary of information provided by the C.I. expressly identified and described elsewhere in the ITO as “C1”.
• In paragraph 15 of the ITO, D.C. Nahrgang expressly indicates the following: “During the course of this investigation, information has been received from one confidential informant.” [Emphasis added.] Given that clear and sworn indication, I think it inappropriate to assume or infer that, when D.C. Nahrgang makes reference in paragraphs 12 and 21 to “received information”, other than that set out in paragraph 19, D.C. Nahrgang must have been referring to information supplied to the police by other unidentified and confidential informants. Doing so would be quite inconsistent with the express indication that all such received information came from one confidential informant; i.e., the C.I. whom D.C. Nahrgang expressly identifies and describes elsewhere in the ITO as “C1”.
• As noted above, D.C. Nahrgang was an officer with considerable experience focused on drug investigations. The content of the ITO makes it plain that D.C. Nahrgang knew the importance of presenting, to the judicial officer reviewing the warrant application, not only information received by the police but also, (subject to the constraints imposed by maintenance of expressly noted C.I. privilege concerns), the source of such information and why D.C. Nahrgang felt it was credible and reliable. Having regard to such realities, I think it entirely unrealistic and inappropriate to infer that D.C. Nahrgang took appropriate care in the presentation of information received from the identified and described C.I., while cavalierly inserting information into the ITO received from other sources he did not even mention, let alone attempt to identify and describe through efforts similar to those undertaken in relation to the confidential informant he had labelled “C1”.
• As noted above, numerous authorities have emphasized that a reviewing court must be cognizant of the realities underlying the preparation of ITO documents such as the one sworn by D.C. Nahrgang; realities that militate against an overly formalistic approach to their interpretation. Like most ITO affidavits, this one was prepared by a police officer, not a lawyer. It was being prepared late in the evening outside of regular court and business hours, (the reason why a telewarrant application was necessary), and therefore likely without the benefit of legal advice. As emphasized by D.C. Nahrgang, it also was being prepared under time constraints and in circumstances of perceived urgency, as there was an apprehension that available evidence would be lost if a warrant could not be obtained and executed that evening. In short, these are precisely the sort of circumstances contemplated by authorities recognizing that it is unrealistic and inappropriate to measure the quality of drafting of such documents by the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings. In my view, while D.C. Nahrgang clearly could have been more careful and precise in his manner of presentation and use of headings, “reasonable latitude” and allowance for imperfections makes it clear, (for the reasons outlined above), that D.C. Nahrgang was indicating all of the “received information”, (whether presented and described in paragraphs 12, 19 or 35 of the ITO), had been provided to the SCU by the same identified and described confidential informant.

• In paragraph 22 of the ITO, D.C. Sneddon notes that, at 6:22pm on March 7, 2017, the SCU “arrested a known drug user after he left 25 Ash Street”, and that “a dime bag containing two orange hydromorphone pills and 1 gram of methamphetamine was located on the male that was arrested”.
• In paragraph 26 of the ITO, D.C. Nahrgang notes, (as part of the described surveillance operations), “Male, Kody Kane, out and away” from 25 Ash Street at 6:11pm, and the next recorded surveillance observation thereafter is “Male arrested at Rosecourt”. [Emphasis added.] In my view, the sequencing makes it clear the two observations/developments were making reference to the same “Male”. (I should also note that, while D.C. Nahrgang made reference only to “Rosecourt” in the ITO, Crown and defence counsel both agreed, during the hearing before me, that having regard to the size of Stratford and my familiarity with the community as the Local Administrative Judge for Perth County, I could take judicial notice of the fact that “Rosecourt” is a reference to the Rosecourt Motel, which has operated on Erie Street, (near the major entrance to Stratford from the south), for many decades.
• In paragraph 33 of the ITO, D.C. Nahrgang explains his reasons for believing Mr Riordan is trafficking methamphetamine and hydromorphone from the house and detached garage located at 25 Ash Street by, inter alia, making a further reference “a male arrested leaving Robert Riordan’s residence and found to be in possession of methamphetamine and hydromorphone”.
• Viewing these references in their totality, I think it clear D.C. Nahrgang was conveying that Kody Kane, a known drug user, was seen leaving the property at 25 Ash Street at 6:11pm, and was arrested at the Rosecourt Motel a short time later, at 6:22pm, in possession of the indicated quantities of hydromorphone and methamphetamine.

• It seems reasonably clear that the “truck” with the “topper” coming “back” to the property at 7:16pm, and dropping off Mr Riordan before driving away, was the same “truck” in which Mr Simpson and Mr Riordan were seen driving away from the property at 7:10pm; i.e., six minutes earlier.
• The recorded surveillance observations do not include an indication of who was driving and who was a passenger when Mr Simpson and Mr Riordan left the property in the truck at 7:10pm. However, as Mr Riordan was a passenger in that truck on its return, and it then drove away without him, it seems reasonably clear that the vehicle belonged to Mr Simpson.
• That in turn suggests the relevant “truck” was the same “black Chev” vehicle in which Mr Simpson originally arrived at the property, at 5:11pm, and drove up the property’s driveway.

Footnotes

1. 1As emphasized in R. v. Leipert, 1997 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 certain redactions/omissions. In that regard:
2. 2Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145.
3. 3See R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at p.278. In this case, there was no challenge to the statute authorizing the search, i.e., section 11 of the CDSA. 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 justice of the peace should not have issued the warrant.
4. 4See Hunter v. Southam Inc., supra, at pp.167-168; and Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, at pp.446-452.
5. 5See R. v. Debot (1987), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (C.A.), at p.219, affirmed 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p.1165; and R. v. Sanchez, 1994 5271 (ON SC), [1994] O.J. No. 2260 (S.C.J.), at paragraph 29.
6. 6See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paragraph 46.
7. 7See, for example: Re Times Square Book Store and The Queen (1985), 1985 170 (ON CA), 21 C.C.C. (3d) 503 (Ont.C.A.), at p.512; R. v. Nguyen (2011), 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont.C.A.), at paragraphs 57-58; and R. v. Boussoulas, supra, at paragraph 12.
8. 8See R. v. Paryniuk, 2017 ONCA 87, [2017] O.J. No. 474 (C.A.), at paragraph 77.
9. 9See R. v. Sanchez, supra, at paragraph 20, R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at paragraph 22; and R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 (S.C.J.), at paragraph 47.
10. 10See R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at p.251; and R. v. Sanchez, supra, at paragraph 30.
11. 11See R. v. Araujo, supra, at paragraph 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraph 40; and R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 84.
12. 12See R. v. Araujo, supra, at paragraph 59; and R. v. Morelli, supra, at paragraphs 41-43.
13. 13See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at paragraph 56; and R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210 (C.A.), at paragraph 27.
14. 14See R. v. Garofoli, supra, at paragraph 68.
15. 15See R. v. Debot, supra, at paragraph 53; R. v. Garofoli, supra, at paragraph 68; and R. v. Shivrattan, supra, at paragraphs 27-28.
16. 16See: R. v. Debot, supra, at paragraph 54; R. v. Garofoli, supra, at paragraph 68; R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont.C.A.), a p.490; R. v. Sutherland (2001), 2000 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont.C.A.); R. v. Zammit (1993 (1993), 1993 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).
17. 17See R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 (C.A.), at p. 123.
18. 18See: R. v. Debot, supra, at paragraphs 54 and 59; and R. v. Amare, supra, at paragraphs 8-9 and 84(3).
19. 19See 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).
20. 20See R. v. Debot, supra, at paragraphs 56-58 and 63.
21. 21See R. v. Debot, supra, at paragraph 53; and R. v. Sanchez, supra, at paragraph 20.
22. 22In his ITO, D.C. Nahrgang emphasized that the relevant C.I. was not willing to provide testimony in relation to this proceeding, owing to “fear of serious bodily harm or even death” if the identity of the C.I. was disclosed.
23. 23As noted above, “full details” of the “criminal history and information “ for the relevant C.I. were provided to the Justice of the Peace, as part of the ITO and warrant application. However, those details were removed and effectively redacted from the ITO when it was disclosed to the applicant, and they similarly were not made available in the context of this application.
24. 24During argument of the application before me, counsel for Mr Riordan argued forcefully that, unlike the information introduced by the previous four bullet points in this sub-paragraph, this additional information could or at least should not be attributed to the same C.I. described above, having regard to the manner in which the information was presented in the ITO. In particular, it was emphasized that, while the information introduced by the previous four bullet points had been presented in paragraph 19 of the ITO under the heading “INFORMATION SUPPLIED BY INFORMER #1”, (i.e., the C.I. identified and described above), the information I have introduced by this last bullet point was instead presented earlier in paragraph 12 of the ITO under the heading “BACKGROUND”, and later in paragraph 21 of the ITO under the heading “INVESTIGATION”. In the result, it was argued that paragraph 19 of the ITO, (the sole paragraph under the heading “INFORMATION SUPPLIED BY INFORMER #1), should be taken as an exhaustive summary of information provided by the identified and described C.I., and that the presentation of other “received information” in earlier and later paragraphs should be taken as information implicitly supplied to the SCU from one or more other unidentified sources in respect of whom no information or description had been provided in the ITO; i.e., sources effectively akin to anonymous tipsters. While I found the argument to be noteworthy and intriguing during the course of its presentation, further review and consideration of the ITO in its totality satisfies me that the argument should be rejected, and that it is more fair and accurate to infer and conclude that D.C. Nahrgang was indicating that all of the “received information” had come from the same C.I. expressly identified and described in the ITO. I say that for numerous reasons, which include the following:
25. 25Both databases were described in detail by D.C. Nahrgang in the ITO. I will not replicate that information here, but it can be found at paragraphs 5 and 6 of the ITO.
26. 26The manner and wording employed by D.C. Nahrgang to present this information in his ITO was, once again, far from perfect. In particular, references to the relevant observations and developments in that regard are scattered over paragraphs 22, 26 and 33 of the ITO, and the information is not always expressed in the same level of detail. However, in my view the combined references effectively make the situation clear. In particular:
27. 27The wording used to describe a number of these observations and developments is, once again, not a model of clarity and precision. However:
28. 28The ITO does not expressly make it clear that the “shop” is another term for the garage on the property. However, I think the meaning is clear from the context. In particular, the observations recorded at 7:16pm, (of Mr Riordan exiting a truck and going “into garage”), at 7:17pm, (of the truck leaving), and at 7:39pm, (indicating that Mr Riordan “came back to shop” after going into the house using a set of keys), were made by the same member of the police surveillance team, (i.e., “GS”), who therefore seemed to use the terms “garage” and “shop” interchangeably. There also is no evidence to suggest that property had more than two structures; i.e., the house and the garage/shop.
29. 29That particular weapon and its corresponding ammunition were located in a room apparently occupied by the home’s owner, Dan Shean.
30. 30That property was located in a room apparently occupied by the applicant.
31. 31In that regard, I note the provisions of s.33(1) of O.Reg. 340/94, enacted pursuant to the Highway Traffic Act, R.S.O. 1990, c.H.8, which requires licenced drivers to notify the Ministry of Transportation of any change of address with six days of the change occurring. The information being provided by the relevant C.I. in this case was compelling, insofar as it suggested the C.I. knew the circumstances of Mr Riordan well enough to say that he had relocated from Exeter to Stratford very recently, or without complying with this legislative notice requirement following a relocation sometime after July of 2015.
32. 32Of course, the fact that a confidential informant is an admitted user of controlled substances might also have an adverse impact on their reliability; e.g., if he or she provided information to the police that was distorted or otherwise inaccurate because his or her ability to make, remember and report potentially relevant observations or information was impaired by drug use. In this particular case, however, it seems to me that D.C. Weyers would have had an enhanced ability – through sustained and repeated contact with the relevant C.I. – to determine whether particular reports from the C.I. in question should be discounted for such reasons. The fact that D.C. Weyers continued to contact and use the relevant C.I. suggests, and likely would have suggested to D.C. Nahrgang and the issuing justice, that there were no such concerns.
33. 33Although counsel for Mr Riordan suggested that the minimum number of “real” visitors to the property that night was lower, insofar as Mr Simpson and Mr Sneddon arguably were attending the property simply to provide rides/transportation for others, the simple fact is that both drivers exited their vehicles and entered the property on foot for periods of time; i.e., Mr Simpson for 59 minutes and Mr Sneddon for 16 minutes, (on his second attendance). The fact that it was a winter’s night strongly suggests that both men went inside the house and/or the garage on the property during their stays.
34. 34As noted above, there was no suggestion in this case that the search was carried out in an unreasonable manner. Nor was there any evidence to support such a suggestion.