Court File and Parties

COURT FILE NO.: CR-19-90000411 DATE: 20200316 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Diana Lumba for the Public Prosecution Service of Canada

- and -

ORVILLE PALMER Corey Nishio for Mr. Palmer

HEARD: January 20 - 22, 2020

RULING ON APPLICATION TO EXCLUDE EVIDENCE

CORRICK J.

Introduction

[1] Orville Palmer is charged with two counts of possession of cocaine for the purpose of trafficking and failing to comply with a recognizance. On November 26, 2018, police officers armed with a search warrant for 109 Jameson Street, Unit 108, arrested Mr. Palmer as he was leaving 109 Jameson Avenue, Unit 108. He was found to be in possession of 10.87 grams of cocaine. Police then executed the warrant on the unit and discovered 79.54 grams of cocaine, $333.00, cutting agents, baggies and a digital scale.

[2] Mr. Palmer has applied to have all of the evidence seized by the police excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his rights protected by s. 8 of the Charter have been violated.

Procedure on the Application

[3] The Information to Obtain (ITO) the search warrant, sworn by Officer Esteves, was based on information obtained from a confidential informant. As a result, the ITO was heavily redacted before it was disclosed to the defence to protect informant privilege.

[4] Although the Crown sought to uphold the warrant on the basis of the redacted ITO, her fallback position was to ask the court to review the adequacy of the ITO on the basis of the contents of the original, unredacted ITO that was provided to the issuing justice, pursuant to the “step six” procedure outlined in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1461. Further to that, she provided defence counsel and the court with the redacted ITO together with a draft judicial summary of the redacted material.

[5] After the Crown clarified several areas in the judicial summary, counsel for the applicant did not take issue with the redactions made to the ITO or with the sufficiency of the draft judicial summary. He did not seek to cross-examine the affiant of the ITO.

[6] The parties agree that the result of this application turns on a consideration of the three criteria outlined in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 for evaluating an ITO that is substantially based on information provided by a confidential informant.

Positions of the Parties

[7] The position of the applicant is that the ITO fails to provide a sufficient basis for the issuance of the search warrant. Specifically, the applicant argues that the ITO was based on information provided by a single untested confidential informant. The information was moderately compelling, was not very credible, and there was very little corroboration of it. The applicant claims, as a result, that the police searches of the unit and his person were in violation of s. 8 of the Charter, and the evidence seized should be excluded.

[8] The applicant also argues that the search warrant is facially invalid as it authorizes the search of 109 Jameson Street, Unit 108 rather than 109 Jameson Avenue, Unit 108. The applicant concedes that this defect, standing alone, is an insufficient basis for excluding the evidence pursuant to s. 24(2) of the Charter.

[9] The respondent’s position is that the confidential informant provided highly compelling information that was corroborated to a moderate degree by the police. The compelling nature of the information and the corroboration compensate for any weakness in the credibility of the confidential informant.

[10] The respondent concedes that there is an error on the face of the warrant authorizing a search of 109 Jameson Street, rather than 109 Jameson Avenue. However, in her submission, this is a technical error that should not result in the exclusion of the evidence pursuant to s. 24(2) of the Charter.

Legal Principles Governing Review of a Search Warrant

[11] Search warrants are presumed to be valid. The applicant bears the onus of establishing that the information contained in the ITO was insufficient to justify the issuance of the warrant: R. v. Sadikov, 2014 ONCA 72, at para. 83.

[12] The focus of the inquiry by the reviewing court is on whether there was reliable information in the ITO, that might reasonably have been believed, that could have permitted the issuing justice to conclude that there were 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.

[13] It is not my role as the reviewing judge to decide whether I would have issued the search warrant based on the information contained in the ITO. The question is whether the justice could have done so. I am not entitled to substitute my view for that of the issuing justice: R. v. Araujo, 2000 SCC 65, at para. 54.

Amplification and Excision

[14] Upon review, the material before the issuing justice can be amplified and excised. The reviewing court must excise erroneous information in the original ITO and may consider evidence presented at the voir dire that corrects good faith errors made by the police in drafting the ITO: R. v. Morelli, 2010 SCC 8, at para. 41; Araujo, at para. 58.

[15] At the outset of the voir dire, Crown counsel corrected the following typographical errors in the ITO. Defence counsel did not object to these corrections.

1. Paragraph u.(i)(2) on page 11 of the redacted ITO (Exhibit 2) should read, “The C.S. has purchased crack cocaine from “Reece” at various locations in the area including 75 Dowling Avenue, Unit #601.
2. Paragraph 1 on page 18 of the redacted ITO should read, “On Saturday, November 24th, 2018, …”

[16] In addition, the Crown filed a photograph of Mr. Palmer, a photocopy of which appears at page 10 of the redacted ITO. The photograph filed is a more accurate reproduction of the photograph that was included in the ITO as the issuing justice would have received it.

[17] Mr. Nishio, counsel for Mr. Palmer, sought excision of two paragraphs in the ITO. The first is paragraph p., which sets out a police occurrence during which Mr. Palmer was investigated, but not charged. I deal with this request for excision later in these reasons when I analyze the corroboration of the informant’s tip.

[18] The second paragraph that ought to be excised, according to Mr. Nishio, is the fifth paragraph under the heading “Conclusion” at page 15 of the ITO. This paragraph states that Mr. Palmer has been observed using techniques to avoid detection while selling drugs. No factual basis for this conclusion is found in the ITO. This paragraph gives the impression that the police had exhausted all avenues to corroborate the informant’s tip. It is misleading and inaccurate and must be excised.

The Adequacy of the ITO

[19] When the police rely upon information from a confidential informant as the basis for their reasonable grounds to justify a search, the court must examine whether the information was compelling, whether the confidential informant was credible, and whether the police corroborated any of the information. It is the totality of these circumstances that must be considered in determining whether the police officer’s grounds were reasonable and probable. Weaknesses in one area may be compensated by strengths in the others: Debot, at p. 1168.

The Redacted ITO (Exhibit 2)

[20] Counsel agree that, measured against the Debot criteria, the compelling nature of the information provided by the confidential informant was the ITO’s strongest point. The applicant submitted that it was moderately compelling; the respondent submitted that it was highly compelling.

[21] A compelling tip contains details that are not widely known. It is based on recent, first-hand observations, not rumour or gossip: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 35.

[22] The redacted ITO sets out neither the source of the confidential informant’s knowledge nor the recency of the information provided. In the absence of these details, the information is not compelling.

[23] The second Debot consideration relates to the credibility of the informant. This is weak. No detail about the confidential informant’s criminal record or outstanding charges is disclosed. Nothing is disclosed about the informant’s history of providing reliable or unreliable information in the past. Finally, details of the informant’s motivation for providing the information are vague at best.

[24] The third Debot factor is corroboration. The moderate amount of corroboration, which confirmed Mr. Palmer’s identity and address but did not confirm the informant’s assertion about Mr. Palmer’s criminal conduct, is insufficient to compensate for the weaknesses in the compellability and credibility criteria.

[25] I am not satisfied that the search warrant could have properly issued based on the redacted ITO as disclosed to the applicant.

The Unredacted ITO (Step Six)

[26] I therefore turn to conduct a step six assessment of the ITO based on the entire ITO as provided to the issuing justice.

Was the Tip Compelling?

[27] The first factor to consider is whether the confidential informant’s information was compelling. This requires consideration of the following questions. How much detail was provided? How recent is the information? Was the detail based on first-hand observations or rumour and gossip? Were the details provided widely known to many people?

[28] The redacted portions of the ITO strengthen the compelling nature of the informant’s tip by detailing how current the information is and the basis for the informant’s knowledge.

[29] The nature of the information provided by the confidential informant contained in the ITO is as follows:

• Timing: The ITO discloses the recency of the confidential informant’s information. It sets out the last time he purchased crack cocaine from the applicant.
• Confidential informant’s knowledge of Mr. Palmer: The informant identified Mr. Palmer as Reece, his cocaine seller, from a photograph shown to him. The informant gave a detailed description of Reece. The length of time the informant had been purchasing cocaine from the applicant is set out.
• Address: Although the informant did not know the applicant’s unit number, the informant provided the applicant’s street address and the route to take from the building’s entrance to reach the applicant’s unit.
• Telephone Number: The informant provided a telephone number by which he contacted the applicant.
• Criminal behaviour: The informant is an addict, who has purchased crack cocaine over a specified period of time from a man known to him as Reece. The various locations from which he has purchased cocaine from Reece are set out. The means by which the informant met the applicant are set out.

[30] It is not possible to outline in any greater detail the nature of the information the confidential informant provided to the police without risking the disclosure of the informant’s identity. A review of the unredacted ITO reveals that the information provided by the confidential informant was detailed. It was not conclusory. It was based on first-hand recent specific information.

[31] I am satisfied that the confidential informant’s tip was compelling.

Is the confidential informant credible?

[32] To determine the confidential informant’s credibility, I have examined whether the confidential informant had provided reliable information to the police in the past, whether the confidential informant had any motive for providing the information, what the motive was, and what the confidential informant’s criminal antecedents were.

[33] There is little in the ITO to support the confidential informant’s credibility. There is no evidence that the informant had provided reliable information to the police in the past. The informant’s criminal record, which was before the issuing justice, does not enhance the informant’s credibility. The informant’s motives for providing the information, which were before the issuing justice, do nothing to enhance credibility. Information about the confidential informant in the ITO does not strengthen the confidential informant’s credibility. It is quite weak.

Was the confidential informant's information corroborated?

[34] The police investigation confirmed the information provided by the confidential informant about Mr. Palmer’s street address, the location of his unit within the building, the route to take from the building’s entrance to arrive at Mr. Palmer’s unit, his physical description, and age.

[35] Officer Blair attended the street address provided by the informant after viewing a photograph of Mr. Palmer. While there, Officer Blair saw a man matching the description given by the informant use a key to unlock the door of a unit located within the building as described by the informant. Officer Blair recognized the man as Mr. Palmer from the photograph he had seen. The male observed by Officer Blair had the same distinctive skin colouring below his eyes as Mr. Palmer had in the photograph.

[36] This was corroboration of the type referred to in R. v. Caissey, 2007 ABCA 380, at para. 25, affirmed on appeal at 2008 SCC 65, [2008] 3 S.C.R. 451 and R. v. Rocha, 2012 ONCA 707, at para. 24, and was held to confirm the reliability of the informant’s information.

[37] Other information provided by the informant was corroborated by a review of various police data banks. For example, the informant said that Reece sold drugs in the King St. and Jameson Avenue area. Police records showed that Mr. Palmer was arrested three times between 2016 and 2018 in the King Street and Jameson Avenue area in possession of cocaine and other illicit drugs.

[38] The informant said that he had purchased drugs from Reece at 75 Dowling Avenue, Unit 601. On October 29, 2017, Mr. Palmer was arrested at 75 Dowling Avenue, Unit 601, and charged with possession of a Schedule I substance, possession of a Schedule I substance for the purpose of trafficking and possession of proceeds obtained by crime.

[39] In 2018, a complainant alleged that she was held against her will by multiple drug dealers in the area of King Street and Jameson Avenue. She knew one of the drug dealers as “Reece,” who was identified through investigation as Mr. Palmer. Mr. Nishio submitted that this occurrence ought to be excised from the ITO because Mr. Palmer was cleared of this allegation. However, the relevance of this occurrence does not relate to the allegations of criminal conduct made by the complainant. Rather, it is relevant because it corroborates Mr. Palmer’s use of the nickname “Reece,” and of his connection to the King and Jameson area.

[40] Mr. Nishio submits that the occurrences in the police data banks are of limited corroborative value because there is no indication that Mr. Palmer was found guilty of the offences with which he was charged. I agree that the corroborative effect of these occurrences would have been stronger had Mr. Palmer been convicted of the offences with which he was charged. However, without that information, they still have corroborative value in that they demonstrate Mr. Palmer’s connection to the geographic area within which the informant said he deals drugs.

[41] Mr. Nishio argues that there were many other avenues the police could have and should have explored to confirm the informant’s tip, given that the informant was untested. The police did not confirm ownership of the telephone number the informant used to contact Mr. Palmer. The police did not speak to the landlord at 109 Jameson Avenue to determine the identity of the tenant in unit #108 or how long the tenant had resided there. No surveillance of Mr. Palmer was conducted in the King and Jameson Avenue neighbourhood to confirm the informant’s assertion that Mr. Palmer sells drugs in that area.

[42] The police ought to have confirmed the criminal conduct the informant alleged Mr. Palmer engaged in, according to Mr. Nishio. However, that is not necessary. As Rosenberg J.A. said in Rocha at para. 22, “The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required.”

[43] The police could have taken many more steps to corroborate the information provided by the informant. However, my analysis must be based on what the police did to corroborate the information, and not what they could have or should have done.

[44] I am satisfied that there was more than a moderate amount of corroboration of the information provided by the confidential informant.

Conclusion on the Debot Criteria

[45] As I have already indicated, the assessment of whether a tip from a confidential informant is sufficiently credible, compelling and corroborated to amount to the required “reasonable grounds” to issue the warrant must be based on the totality of the circumstances. Weaknesses in one area can be compensated by strengths in the other two.

[46] Despite the weakness in the confidential informant’s credibility, the combination of a compelling tip together with the independent investigative corroboration was sufficiently reliable evidence to permit the issuing justice 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.

Facial Invalidity

[47] The warrant authorized the search of “109 Jameson Street, unit 108, Toronto” rather than 109 Jameson Avenue, unit 108, Toronto, which was the location that was actually searched. The first two pages of the ITO incorrectly identify the place to be searched as 109 Jameson Street, unit 108. There are 26 further references to the address in the ITO. It is set out correctly in every instance, but two. It is clear from the contents of the ITO that the warrant is being sought for 109 Jameson Avenue, unit 108.

[48] To be valid, search warrants must adequately describe the place to be searched: R. v. Ting, 2016 ONCA 57, at para. 50; R. v. Saint, 2017 ONCA 491, at para. 7. Justice Miller described the “multiple reasons for this demand for specificity” at para. 7 of R. v. Saint as follows:

First, meaningful judicial pre-authorization requires specific details. It is crucial for effective judicial control of the search that the reviewing justice understand the parameters of the proposed search, and that the search conducted be the search that was in fact authorized: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516 (Ont. C.A.), at para. 49. Second, by providing a precise description of the place to be searched, the warrant directs the actions of the executing officers, guiding them to the specific place to be searched and defining the boundaries of the search. An insufficiently specific warrant will fail to provide the requisite guidance to the executing officers, leaving them to fill in the blanks with their own knowledge, or to pursue attractive leads at their own discretion: Ting, at paras. 60-61. Third, specification of place in the warrant allows a person served with the warrant to readily apprehend that executing officers have legal authority to enter and conduct the search, reducing the risk of conflict and violent resistance to the search: Ting, at para. 49; Eccles v. Bourque (1974), 1974 191 (SCC), [1975] 2 S.C.R. 739 (S.C.C.).

[49] Ms. Lumba correctly concedes that there is an error on the face of the warrant invalidating it. Consequently, the search of Mr. Palmer’s residence violated his rights protected by s. 8 of the Charter.

Section 24(2) Analysis

[50] The applicant bears the onus of establishing on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. Mr. Nishio fairly concedes that a breach of s. 8 flowing from the error in the address on the face of the warrant, standing alone, was an insufficient basis for the exclusion of the evidence.

[51] The framework for analyzing whether a breach of Charter rights should result in the exclusion of evidence was set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. It requires a consideration of three questions.

[52] The first line of inquiry under Grant is into the seriousness of the Charter-infringing conduct. Setting out the incorrect address in the ITO and failing to notice the incorrect address on the face of the warrant were inadvertent errors. I am satisfied that the police acted in good faith in reliance on the warrant given that they did all that was required of them to obtain the warrant in the first place.

[53] This line of inquiry tips towards inclusion.

[54] The second line of inquiry in Grant is into the impact of the breach on the Charter-protected interests of the applicant. The interest here is the protection from unreasonable search and seizure in a residence where the applicant’s expectation of privacy is very high. Although there is no suggestion of any impropriety on the part of the officers who executed the search as in Ting, the search of his home remains a serious intrusion on Mr. Palmer’s privacy interests.

[55] This line of inquiry tips towards exclusion.

[56] The third line of inquiry requires the court to consider society’s interest in the adjudication of this case on its merits. The seriousness of the crime of drug trafficking and the havoc it wreaks on our community cannot be doubted. The evidence of drugs and money seized as a result of the execution of the search warrant is highly reliable and is critical to the Crown’s case.

[57] This line of inquiry tips towards inclusion.

[58] When I balance the three lines of inquiry and consider all of the circumstances, I am satisfied that the admission of the evidence will not bring the administration of justice into disrepute.

[59] For the foregoing reasons, the application to exclude the evidence seized is dismissed.

Corrick J. Released: March 16, 2020

COURT FILE NO.: CR-19-90000411 DATE: 20200316 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ORVILLE PALMER ruling on application to exclude evidence Corrick J. Released: March 16, 2020