R. v. Calhoun, 2021 ONSC 2634

Court File and Parties

COURT FILE NO.: 47/19

DATE: 20210408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Narrissa Calhoun Defendant

Frances Brennan, for the Crown

Raymond Boggs, for the Defendant

HEARD: January 27, 28 and 29, 2021

Rady J

Reasons for Decision

1Ms. Calhoun is charged on a two-count indictment, one for possession of fentanyl and the other for hydromorphone, both for the purpose of trafficking. She was arrested on March 1, 2018 following the execution of a search warrant at her residence located at 69-61 Bow Street, London and her Hyundai Sonata.

2The warrant was signed by Justice of the Peace Seneshen pursuant to s. 11 of the Controlled Drugs and Substance Act (CDSA), on the basis of an Information to Obtain a Search Warrant (ITO), sworn by Detective Constable Kristian Pouliot of the London Police Service on March 1, 2018. It authorized officers to search for evidence of fentanyl trafficking. During the course of their search, officers seized baggies, scales, seven cell phones, some false-bottomed containers and a small quantity of fentanyl inside the home.

3After the applicant was arrested, she was taken to the London Police Service Headquarters where she was subjected to a strip search. Nothing was found during the search. Eventually, she was taken to Elgin Middlesex Detention Centre (EMDC). The Crown alleges she had concealed 47 grams of powdered fentanyl on her person that was discovered following her admission to EMDC on March 2, 2018.

4The Crown alleges that Ms. Calhoun sat in a waiting room following her arrival. When she left the waiting room, she passed through a body scan, which disclosed nothing out of the ordinary. When surveillance footage of the waiting room was later reviewed, the applicant is said to be observed removing something from the area of her groin. She placed it under the door separating the waiting area and the room containing the body scanner. An officer later retrieved a small baggie of fentanyl, which was turned over to London Police.

5Ms. Calhoun’s co-accused, Shane Simmers, was also arrested during the execution of the warrant. He was found to be in possession of a quantity of hydromorphone, fentanyl and other drugs. His charges have been resolved.

The Parties’ Positions

6The applicant seeks to exclude the evidence because the warrant on which the search was based was issued on the basis of wholly inadequate and faulty information. Consequently, what followed and in particular the arrest and strip search, were not justified. The Prosecution submits that the search and arrest were lawful because the ITO contained current and detailed information from a confidential source (C1 #1), corroborated by surveillance and other information, all of which was sufficient to ground the search warrant and arrest.

The Information to Obtain

7As noted, D/C Kristian Pouliot drafted the ITO. His grounds to believe the applicant was trafficking fentanyl derived from two confidential sources, certain database checks, and surveillance conducted over the course of four days by London Police.

8A redacted copy of the ITO has been produced. It includes D/C Pouliot’s affidavit and a “Tearaway Appendix B”, which provides some further detail respecting C1 #1 and the information provided, as more particularly set out below.

9The following information was provided by C1 #1 in 2018. The precise dates are redacted but the information was provided in January or February. C1 #1 told police:

• Ms. Calhoun deals fentanyl;
• source personally saw her with powdered fentanyl;
• she sells primarily from her address at 69 Bow St., London;
• source purchased a few points of fentanyl from her;
• source was at Bow Street where it saw Ms. Calhoun “pull fentanyl from kitchen…”;
• Ms. Calhoun sells points $40-50;
• she was in a relationship with Raymond Versteeg, a drug trafficker known as “fresh”. This paragraph is footnoted to disclose that he was the subject of several 2017 Crime Stoppers tips indicating he was dealing from an address on Bow Street and that he is currently in jail for trafficking fentanyl and methamphetamine from 69-61 Bow Street;
• Ms. Calhoun resided with two young children and a “Pitbull style dog” at her residence.

10The ITO also discloses that this source had provided information in the past, which was acted upon. D/C Pouliot is described as the primary handler for this source. The ITO does not specify if the individual has a criminal record. The source is involved in the drug subculture and was warned by LPS that it would no longer be used if false information was provided. The ITO provides information respecting seizures of marijuana, crack and methamphetamine resulting from information the source had provided as well as the source’s motivation.

11The second confidential source contacted Crime Stoppers in 2016. Part of the information provided is redacted. The information is obviously dated. The caller reported dealing meth and fentanyl with Ms. Calhoun and Raymond Versteeg. Because the information was provided anonymously through Crime Stoppers, there is no information about this source’s motivation or background.

12D/C Pouliot attempted to verify the information provided by C1 #1 through Versadex, which is a London Police database and the Ministry of Transportation. He learned the following:

• Versadex and MTO databases both listed Ms. Calhoun’s address as 69-61 Bow Street, London, Ontario;
• MTO database confirmed that the Hyundai Sonata was registered to her;
• MTO and Versadex databases contained a photograph of her;
• Versadex noted that Ms. Calhoun was charged on November 23, 2015 with firearms offences and possession of cocaine/methamphetamine for the purpose of trafficking. Her co-accused, Gordon Norris, a member of the London Hells Angels with several convictions for possession of controlled substances and firearms, was still before the court. Ms. Calhoun was a co-accused with Mr. Norris on one such offence although there is no further elaboration.
• Versadex disclosed that Ms. Calhoun has an “extensive history” with LPS and “several criminal associates who are heavily involved in drug trafficking”;
• CPIC listed a 2017 criminal conviction for possession of a Schedule 1 substance. I pause here to note that the defence points out that in fact, Ms. Calhoun received a conditional discharge. Consequently, the information is not, strictly speaking, entirely accurate;
• CPIC also showed that charges in 2010 and 2017 for possession, possession for trafficking and firearms offences were withdrawn.
• Raymond Versteeg was in jail for trafficking cocaine and methamphetamine from unit 69-61 Bow Street in 2017. D/C Pouliot does not specifically cite the source of this information.

13Police also conducted surveillance on the applicant over four days in February 2018, the particulars of which are outlined by D/C Pouliot. Some of the entries are followed by an italicized “Affiant Note” that is essentially a commentary on what the affiant believes is significant about the observation.:

• February 15, 2018: Officer Gerber observed Ms. Calhoun drive the Hyundai to the Bow Street address, which she entered. She used a key for access, said to demonstrate control over the premises.
• February 16, 2018: Officers Pouliot and Gerber observed Ms. Calhoun involved in three interactions suspected to be drug transactions. Two occurred in the Hyundai and one at the Bow Street residence. D/C Pouliot explains why, in his experience, these observations were consistent with illegal activity. The brevity of the visit to the residence (ten minutes) and the fact that it was “concealed from the public” is noted. One interaction was with a person identified as a known drug trafficker. D/C Pouliot comments that one of the transactions was conducted in a way “synonymous” with drug trafficking.
• February 21, 2018: at 1:29 p.m., D/C Pouliot observed Ms. Calhoun walking from her home with her dog, messaging on her cell phone, to an address on Noel Street. She met with an unknown person and left after a brief conversation. The interaction lasted ten minutes. D/C Pouliot explains that a short meeting “concealed from” public view was consistent with drug trafficking, in his experience.
• February 28, 2018: D/C Pouliot outlined three transactions involving Ms. Calhoun suspected to be drug deals, all of which occurring at the Bow Street residence. All lasted 20 minutes or less. He described why the interactions were “consistent with” trafficking.

14D/C Pouliot deposed that several individuals observed by police during those four days of surveillance had extensive involvement in the drug subculture and “high level” trafficking. He also noted that the applicant used certain techniques that are also used by drug traffickers to avoid detection, the detail of which is set out in his affidavit. He spoke of certain behaviour exhibited by Ms. Calhoun as being “important traits” of traffickers. In reliance on the foregoing information, the warrant was issued.

The Arrest and Search

15Officers Pouliot, Ordronneau, Gerber, Outremans and Smith arrived at the Bow Street address. They knocked on the front door. There was no answer. The door was locked so officers made a “dynamic entry”. It took five to ten seconds to breach the door. D/C Pouliot testified that he went from the front door directly to the kitchen located at the back. Five to ten seconds elapsed from entry until he reached the kitchen where Ms. Calhoun and Mr. Simmers were located. They were standing in front of a counter with their backs toward the officers, hands at their waistline level and out of sight.

16D/C Pouliot testified that he told them they were under arrest. They did not turn around. He believed the two were about to use drugs. No drugs or residue were found later on the counter but foil cut in two to four inch squares, which is typically used to smoke fentanyl was found.

17D/C Pouliot testified that given the time that elapsed from police’s arrival to encountering the two in the kitchen, and their positions at the counter with their backs to officers, hands hidden or concealed, he believed they had concealed drugs on their bodies. He also testified that he understands from informants that women can hide drugs in body cavities very quickly.

18He conceded in cross-examination that he could not see their hands or see them doing anything with them. He acknowledged it was probably the wrong term to describe their hands as “concealed” or “hidden”. Rather, they were out of sight. However, based on the totality of the circumstances, his observations and experience, he believed that reasonable and probable grounds existed to arrest.

19Staff Sergeant Ordronneau was the supervising officer and he testified that after police gained entry, he went upstairs first and then to the kitchen.

20He testified that D/C Pouliot informed him that the suspects were discovered facing away from officers with both hands cupped in front of their waists. Based on this information and the suspects’ positions in the kitchen, he believed they had concealed something on their persons. Accordingly, he ordered a strip search be conducted.

21I pause here to note that it cannot be accurate to say that the suspects’ hands were “cupped” if they were in front of their bodies and if they were turned away from officers. Officers would be unable to observe them. However, nothing turns on the description notwithstanding what I consider to be an overstatement.

22Drugs were found on Mr. Simmers upon pat down but S/S Ordronneau said he had already had grounds to order the strip search of Ms. Calhoun given the concern that she had concealed items on her person. She was taken to LPS headquarters where she was strip searched by two female officers. In her affidavit sworn January 6, 2021 at para. 9, Ms. Calhoun deposes that she was strip searched twice by the officers. It is not clear from her affidavit whether she alleges the second search was conducted at LPS headquarters or EMDC. She does not specify. No detail beyond the bald assertion is offered.

23Officer Lori Boyko from the LPS conducted one strip search and she testified about how it was conducted. I think it is accurate to say that any strip search is intrinsically demeaning and highly intrusive. In this case, the search was conducted in a respectful way that afforded Ms. Calhoun privacy and safety and ensured her dignity was preserved as much as possible. Officer Boyko and Cadet Rebecca McCullough were tasked with the search. Cadet McCullough’s role was to take notes and search some items of clothing as they were removed. Before beginning, Officer Boyko explained to the applicant what was going to happen. The applicant responded that she understood. She was polite and cooperative.

24The search was conducted in a private windowless room with the door closed. The search involved visual observation only, no physical contact and no cavity search. Only one part of the body was unclothed at any time. The search was methodical and meticulous. Nothing was located and nothing caused Officer Boyko concern that a cavity search was necessary, which Officer Boyko testified would have required separate judicial authorization.

25I pause here to say that although the applicant’s material seemed to criticize the way in which the strip search was conducted, the submission was not pursued during argument. Further, there is no evidence of a second strip search being conducted either at the London police station or at EMDC. Officer Boyko conducted one search only.

26The applicant did not testify at the hearing and as noted, her affidavit is very vague and there is simply no evidentiary basis on which the court could conclude that a second search was done.

The Law

27There appears to be no disagreement between the parties about the relevant cases and principles. Section 8 of the Charter of Rights and Freedoms guarantees the right to be secure against unreasonable search or seizure.

28Section 11(1) of the CDSA authorizes a justice of the peace to issue a search warrant where there are reasonable grounds to believe that a controlled substance or evidence of an offence under the CDSA or certain provisions of the Criminal Code is in the targeted area.

29The following principles have emerged from the case law:

• a warrant is presumptively valid and the defence bears the burden on a balance of probabilities to rebut the presumption: R. v. Lising, 2005 SCC 61 at para. 30; R. v. McNeill, 2020 ONCA 313 at para. 32;
• it is not this court’s function to undertake a review de novo. The issuing court is entitled to deference and the question is if the warrant could have issued: McNeill, supra at para. 33; R. v. Sadikov, 2014 ONCA 72 at para. 84;
• the standard does not require proof beyond a reasonable doubt, a prima facie case or even a balance of probabilities: R. v. Debot (1989), C.C.C. (3d) 193 (S.C.C.) at para. 22; and R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.) at para. 22;
• the analysis requires an assessment of whether there is a “credibly-based probability” of criminal activity. An affidavit must be read in its entirety in order to do so: McNeill, supra at para. 32; R. v. Sadikov, supra at paras. 80, 82;
• mere suspicion is insufficient: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.) at para. 77;
• reasonable inferences may be drawn including those suggested by an experienced investigator: R. v. Jacobson, supra at para. 22. See also R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 6;
• it is not necessary to actually observe criminal activity in order to form grounds to arrest. This is particularly so in drug transactions, which are often conducted covertly in order to avoid detection: R. v. Herta, 2018 ONCA 927 at para. 38.

Analysis

30I have concluded that the warrant was validly issued for several reasons.

31I agree with the applicant that. taken in isolation, some of the information underlying the warrant can be viewed as innocuous or consistent with activity other than illegal activity. So, for example, the fact that the confidential informant disclosed that the applicant resided at the specified address and two children lived there might not normally be particularly noteworthy. Similarly, she is seen speaking with people or travelling in her car, again what might be described as typical activities of daily living.

32The difficulty with the applicant’s contention is that it invites the parsing out of individual pieces of information and considering each in isolation. It ignores the direction from the authorities to consider the totality of the evidence in determining whether a warrant could have issued.

33Here, the justice of the peace had the following information:

1. a dated Crime Stoppers tip;
2. information from a known and proven confidential source, including that it had seen the applicant with fentanyl; and it purchased powdered points of fentanyl from her for a certain specified price;
3. source disclosure of where the applicant often conducted business – in the kitchen at the Bow Street address where two children lived – and her relationship with a drug dealer;
4. biographical information corroborated through surveillance and from police and other databases;
5. surveillance of the applicant showing activity consistent with drug trafficking – short meetings in her vehicle and home, and involving vehicles and persons linked to the drug subculture; and
6. a pattern of counter surveillance behaviour that is consistent with drug trafficking.

34I pause here to observe that D/C Pouliot’s description of some of the activity as being “synonymous” with drug trafficking considerably overstates the evidence. Similarly, the officer speaks of meetings being concealed from view. There is a pejorative sense to the word although it is not inaccurate. It is the case that the meetings were out of the officers’ sight. However, it is unlikely that any of this would have been lost on the experienced justice of the peace and they were two somewhat inapt descriptors among other unobjectionable descriptors. Bear in mind as well that the justice of the peace is entitled but is not bound to accept the suggested inference.

35I also agree with the Crown’s characterization of the confidential source as of moderate credibility. There is no information whether it has a criminal record. It also receives consideration for information. However, it has been advised that it will not be used if false information is provided. Information provided in the past has yielded seizures of crack, methamphetamine and marijuana.

36Taking all of the foregoing information together, I am satisfied that the justice of the peace had a sufficient basis transcending a mere suspicion to issue the search warrant.

37I am also satisfied that reasonable and probable grounds existed in the circumstances justifying the arrest and the strip search subsequently conducted. Police had what they believed to be a validly issued search warrant based on the information already reviewed. The applicant and Mr. Simmers were located in the kitchen with their backs turned to officers, their hands out of sight. Squares of foil were set out on the counter. There was time from police arrival and entry until they located the applicant for drugs or other contraband to be concealed on the body, which in D/C Pouliot’s experience can be done quickly. Items associated with the drug trade were located on the premises.

38In respect of the strip search itself, I note that:

1. no drugs were discovered on the applicant’s person when she was searched;
2. no complaint is advanced about the way in which the strip search was conducted. It complied with the criteria set out in R. v. Golden, 2001 SCC 83;
3. there is no evidence of a second strip search at the London Police station or a cavity search or another search being conducted at EMDC; and
4. there is no evidence found as a result of the strip search to be excluded.

39I return then to the search warrant and arrest. As I have already said, I am satisfied that the search warrant was issued on the basis of a sufficient evidentiary record.

40I have also concluded that reasonable and probable grounds existed to arrest the applicant. It is the subsequent chain of events that led her to EMDC where the drugs forming the basis of the charges were located.

41If I am mistaken as to the validity of the search warrant and the arrest, the issue is whether the evidence should be excluded as a result. The analysis is set out in R. v. Grant, 2009 SCC 32 and involves a consideration of the following:

1. the seriousness of police conduct;
2. the seriousness of the breach; and
3. whether the admission of the evidence would undermine public confidence in the administration of justice.

42In this case, as to the first step, if there was Charter-infringing police conduct, it is at the low end of the spectrum. With respect to the search warrant, there is no basis to conclude D/C Pouliot acted deceitfully or attempted to mislead the Justice. The arrest itself was based on the grounds set out in the search warrant but also on the circumstances arising during the execution of the warrant: the time taken to gain entry and locate the applicant; her position in the kitchen; and the belief she had the opportunity and did conceal something.

43The strip search was ordered on the basis of the police observations during execution of the warrant, grounds that existed independent of those outlined in the ITO. It was ordered by a supervising officer. It was conducted in compliance with the criteria set out in Golden, supra.

44This step of the analysis favours inclusion.

45If there were a breach, it is serious and favours exclusion as the Crown properly acknowledges. The high degree of privacy in one’s person and residence and the high degree of intrusion are self evident.

46The analysis falls to be determined on the balancing of the factors particularly where the first two pull in different directions. In my view, the balance tips in favour of the admission of the drugs ultimately located. A significant quantity of a serious drug is found in a custodial facility. The evidence itself is reliable and important to the viability of the prosecution.

47For these reasons, the application is dismissed. Two Crown applications, one for the admission of cell phone records and the other respecting an expert’s qualifications, were not argued because of defence concessions.

COURT FILE NO.: 47/19

DATE: 20210408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

v.

Narrissa Calhoun

REASONS FOR decision

Rady J.

Released: April 8, 2021