R. v. Fowler, 2021 ONSC 3180

Court File No.: CR-20-2 Date: 2021-07-07 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Nicole Marie Fowler

Before: Justice A. Doyle

Counsel: Michael S. Mandelcorn, Counsel, for the Crown Lorne Goldstein, Counsel, for the Accused

Heard: April 22, 2021 via Zoom

Supplementary Amended Endorsement on Charter Application

The text in the original Endorsement on Charter Application of May 26, 2021 was corrected on June 25, 2021 at p. 12 and was furtherly corrected on July 7, 2021 at p.13 and the explanation of the correction is appended.

Doyle J.

[1] The accused, Nicole Marie Fowler, brings this application to exclude from evidence items seized on July 18, 2018 from her residence on the basis that her rights under ss.8 and 24(2) of the Charter of Rights and Freedom have been breached and the admission of these items in these proceedings would bring the administration of justice into disrepute.

[2] The issues for determination are:

Did the Information to Obtain (ITO) to obtain a search warrant establish that there were reasonable and probable grounds that the items to be seized would prove the commission of an offence?

If yes, then should the items seized be excluded from evidence?

[3] For the reasons that follow, I grant the defence application.

Brief Facts

[4] The Crown and Defence agree on the following facts.

[5] On July 18, 2018, Ms. Fowler was found in her residence at 65 Curtis Crescent, Kingston, ON, ("residence") when the police executed a search warrant targeting Mr. Wade Fox.

[6] The search yielded seizures of a loaded firearm, ammunition, prohibited weapons, $65,739.60 in cash and drugs.

[7] The ITO relied on information received from two Confidential Human Sources (CHS/informers) and an unnamed Crime Stoppers' tip.

[8] Mr. Fox has resolved his charges with a guilty plea.

Defence Position

[9] The Defence argues that the ITO is deficient as follows:

• No details of the CHSs criminal records except for confirmation that there are no convictions for perjury;
• No details if the CHSs have ever been convicted of offences dealing with dishonesty such as fraud or theft;
• The CHS's credibility is particularly diminished as they are motivated by money and/or a consideration for their own charges;
• There was little of the expected police investigation to corroborate this information, including no surveillance;
• There was no information that the guns that Mr. Fox possessed were actually in his residence; and
• Redactions that were made on the ITO to protect the identities of the CHS's do not provide reasonable and probable grounds for the search of the residence to locate a gun.

Position of the Crown

[10] The ITO provides sufficient detail to the authorizing Justice to believe that there are reasonable and probable grounds that an offence has been committed.

[11] Redactions of the ITO are necessary to protect the identity of the CHS's. In addition, if further information is provided in the ITO to detail criminal records and whether previous information led to convictions, this information would have the effect of reducing the pool of possible informers. This is especially important in a small city such as Kingston.

[12] The police did conduct an independent investigation by searching the RMS which provided a great deal of background information regarding Mr. Fox and the multiple contacts he had with police authorities in the past. This was not meant to bolster a propensity argument but rather to provide context with respect to Mr. Fox.

[13] There was also the added element of a crime stopper who provided corroborating evidence.

Legal Principles

[14] The Crown and defence agree on the general legal principles that apply.

[15] A reasonable search must include the prior authorization from an individual acting in a judicial manner who is assessing in a neutral and impartial manner and that there must be reasonable and probable grounds to believe that an offence has been committed and that evidence of this will be found in a particular case.[^1]

[16] Reasonable grounds is one of "reasonable probability" or "reasonable belief".[^2]

[17] In determining the weight of the evidence relied on by the police to justify a search, the Court must consider:

• Whether the information setting out the commission of the offence is compelling;
• Where the information was based on an informer's tip, whether that source was credible; and
• Whether the information was corroborated by a police investigation prior to the decision to request a search.[^3]

[18] A search will be considered reasonable if it is authorized by law and the law is reasonable and the manner in which the search was carried out is reasonable.[^4]

[19] The test to be applied when reviewing the sufficiency of information in a search warrant is set out in R. v. Garofoli[^5] where the Supreme Court confirmed that this Court does not substitute its decision for that of the authorizing judge. This Court should only interfere if it concludes that the authorizing Judge should not have granted the authorization. It is clear that this court may not substitute its own view nor consider the results of the search in the assessment of the sufficiency of the grounds.[^6]

[20] In Garofoli,[^7] the Supreme Court summarized this area as follows:

Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability

[21] In R. v. Debot[^8], the Supreme Court affirmed the Ontario Court of Appeal's decision[^9] that the ITO cannot contain "mere conclusory statements but rather whether there is sufficient detail to ensure that the information is not based "on mere rumor or gossip", and whether the information discloses his/her source of information or means of knowledge and whether there is any indicia of his/her reliability such as supplying reliable information or confirmation by police surveillance.

[22] At p. 1168, the Supreme Court in weighing the evidence relied on by the police stated that the information must be compelling, credible and corroborated by the police investigation and that the totality of the circumstances must meet the standard of reasonableness.

[23] As stated by Hill J. in R. v. MacDonald[^10] there is no expectation that the search warrant applications prepared by officers will reach the standards of lawyer created documents. Nevertheless, it is an application to authorize an intrusion of a reasonable expectation of privacy in a residence and hence there is no room for "casual adherence to statutory and jurisprudential rules in applying for a warrant..."

[24] In R. v. Hosie[^11], the Ontario Court of Appeal found that the language in the information was careless and not consistent with the standard of care expected from a police officer applying for a search warrant. The Court stated that "There is no indication as to the informer's source of knowledge or how current the information is." and "There is no way to know whether the informer has obtained his information through personal observation as opposed to rumour or second or third-hand information."

[25] In R. v. Greaves-Bissesarsingh[^12]: Pomerance J. dismissed a motion under s. 8 of the Charter alleging that the grounds for the warrant as disclosed in insufficient information. The Court found that the combination of the compelling tip and some investigative corroboration provided the Justice of the Peace with the proper basis to find that the reasonable and probable grounds standard had been met. Although the informer's credibility was weakened by self-interest, criminal lifestyle and no history of providing reliable information to the police, the informer's tip was detailed and current and disclosed the means by which the informant obtained his knowledge, which discounted the allegation that the information was based on hearsay or rumour. In addition, the police independently established it through its own investigation.

[26] The underlying circumstances disclosed by the informer for his conclusion must be set out to enable the justice to satisfy themselves that the requisite reasonable grounds exist.

Analysis

[27] The onus is on the defence to prove on the balance of probabilities that the ITO was not sufficient to show that on reasonable and probable grounds the seizure of the items will afford evidence with respect to the commission of an offence.

[28] I find that the ITO as presented (i.e. with redactions) did not rise to the level required, i.e. the information was not detailed, compelling and sufficient to meet the reasonable probability test set out in R. v. Caissey.[^13]

[29] In Caissey, the Supreme Court of Canada accepted the majority decision of the Alberta Court of Appeal[^14], which set out a step by step process in analyzing ITO's. At paras. 15, 16, the court reiterates that: "Mere conclusory statements by an informant are not sufficient to constitute reasonable and probable belief..."

[30] Turning to the ITO in this case:

[31] Firstly, the information that pertains specifically to this matter commences at the bottom of p. 7 of the ITO. The first 7 pages consist mostly of introductory boilerplate information.

[32] In support of the ITO for a search warrant of the residence dated July 18, 2018, Detective Constable Davidson ("DC Davidson") of the Kingston Police relied on the following:

• Information received from two Confidential Human Sources who were both:
  • Proven reliable on previous occasions in that the information was used to arrest wanted persons and provide information regarding search warrants in multiple and Controlled Drugs and Substances Act ("CDSA") charges and seizures of drugs and cash;
  • Motivated by charge considerations and monetary gain;
  • Have criminal records but no conviction for perjury;
  • Are aware that no consideration is given for false and misleading information and to date, DC Brown is not aware of receiving any false or misleading information from the CHS#1 and that DC Boyles is not aware of receiving any false or misleading information from CHS#2.
• Regarding information from CHS#1:
  • In June 2018, CHS#1 advised DC Brown that Mr. Fox alias "MIAMI" was in possession of a black .380 Caliber handgun which he possibly carried with him during drug deals and he also had ammunition.
  • In July 2018, CHS#1 advised DC Brown that:
    • Mr. Fox was still in possession of the handgun and ammunition;
    • Gave a detailed description of 65 Curtis Crescent residence; and
    • That Mr. Fox is clever and will hide his guns, drugs and money in his residence;
• DC Davidson ran Mr. Fox through Canadian Police Information Center (CPIC), Police Automated Registered Information System (PARIS) and Kingston Police Records Management System (RMS) and learned that:
  • He resides at 65 Curtis Crescent with his girlfriend Ms. Fowler and their daughter and son since at least 2016;
  • He is flagged as "Caution Violent, contagious disease and escape risk on CPIC";
  • He has 20 contacts with the Kingston Police including 7 intelligence reports, 1 contact card and 4 arrest warrants (one is for trafficking);
  • In a previous warrant executed at 65 Curtis Crescent, the Kingston Police Drug Squad seized, among other things, crystal methamphetamine, cocaine, marijuana and large amounts of currency and packaging materials;
  • He is currently facing trafficking charges for cannabis, methamphetamine and cocaine;
  • He has a lifetime prohibition from possessing firearms; and
  • He drives a Cadillac.
• A crime stoppers tip dated May 22, 2018 from an unknown source reported the following:
  • He resides at 65 Curtis Crescent with Ms. Fowler and their 6 year old daughter;
  • He trafficks in drugs;
  • He possesses a .22 Calibre pistol that he keeps hidden; and
  • He drives a Cadillac.
• DC Davidson read 7 intelligent reports that confirm that Mr. Fox is a well-known drug trafficker and would have used firearms to conduct his activities
• DC Boyles received information from CHS#2 who stated that:
  • he attended Mr. Fox's residence at 65 Curtis Crescent to buy drugs in June 2018
  • that Mr. Fox stashes his guns, drugs and money; and
  • Mr. Fox will hide his guns drugs and money in his residence.

Is the information credible?

[33] Regarding the credibility consideration, this is meant to capture the informer's motivation, criminal antecedents or any past history of providing reliable information to the police, I find the following regarding both CHSs:

• There was past involvement of providing information that led to charges but not convictions;
• The informer's credibility is weakened by his/her self-interested motivation and their criminal lifestyle; I do note that this not unusual in these type of drug cases and this fact is not itself fatal; and
• There was no disclosure as to whether the informers had criminal records for crimes of dishonesty

[34] In R. v. Rocha (2012) 2012 ONCA 707, 292 C.C.C. (3d) 325, the Ontario Court of Appeal criticized this type of limited disclosure regarding an informant's criminal records. Here, the Crown indicates that the disclosure of further details would limit the pool of possible informants in Kingston and there is an obvious need to protect the identity of the source. There was no request by the Crown here for amplification of the ITO as permitted in R. v. Araujo (2000) 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Morelli (2010) 2010 SCC 8, 252 C.C.C. (3d) 273 (S.C.C.).

[35] However, as stated by Wilson J in Debot, at 1168 "Weaknesses in one area may, to some extent, be compensated by strengths in the other two".

[36] I now turn to the other two areas to consider.

Is the information compelling?

[37] There is some compelling evidence. There were two separate confidential human sources who had both provided reliable information in the past that have had led to arrests of wanted persons and laying of CDSA charges and seizures of drugs and cash. However, no information was provided that information from CHS#1 and CHS#2 had led to convictions.

[38] DC Brown was not aware of any false or misleading information from CHS#1. CHS#1 advised in July 2018 that Mr. Fox was still in possession of handgun and ammunition and described his evidence but again not the location of the handgun. The information is current but not detailed regarding the location of the handgun.

[39] The crime stoppers tip of May 22, 2018 again confirms that Mr. Fox is in possession of a .22 Caliber pistol but no indication of where it is located.

[40] The information found in the ITO is not up to the standard demonstrated in Rocha, where the information provided where the drugs would be found in the restaurant, that the informer had observed 10 to 15 drug transactions in the restaurant where the drugs were stored, how they were packaged and how the drugs were obtained by the accused's brother.

[41] In R. v. Kesselring[^15], the informer's tip was found to be compelling as he/she provided considerable detail of the accused, names of the occupants of the house, physical description of the accused, a description of the house, its location, his description of the detailed information regarding the hydroponic marijuana growing operation.

[42] Regarding the crime stopper's tip here, there is no information regarding past record of reliable information. However as noted by the Court in Greaves-Bissesarsingh at para. 37, these tips have in the past been found to be compelling if supported by some corroboration. R. v. Plant (1993) 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and R. v. Kesselring. The weakness in the credibility of this tip is counterbalanced by the fact that there is corroboration here from other informers.

[43] To reiterate there was information that Mr. Fox was in possession of a hand gun but nothing stating that it would be located at 65 Curtis Crescent, a residence he shared with Ms. Fowler. Any statement or fact that could have corroborated that fact, was redacted.

Was there corroborative evidence?

[44] Regarding the police's investigation to corroborate the information provided by the tips, it did reveal the following:

• That Mr. Fox and Ms. Fowler lived at the Curtis residence; and
• That Mr. Fox was known to the police.

[45] There were only computer searches. There was no surveillance of the Curtis residence nor any further investigation as to whether the gun was actually in the residence.

[46] In the Greaves-Bissesarsingh case, the informer's tip was detailed and current and repeatedly disclosed means by which the information was obtained and that firearm was in the residence. There the police independently established the accused's age, description, his residence, the people who resided there, and the car he had access to. The police attended at the address provided by the informer and interviewed security staff at the building to learn that the unit referred to by the informer was registered to another individual and that the accused was living there. The police investigation thereby diminished the possibility of hearsay or rumour.

[47] However, the connection and strength of the information from the three separate informers deals more with the fact that Mr. Fox is a drug dealer and possesses a gun rather than information that is credible and compelling that the gun is actually in the residence.

[48] The police investigation confirmed Mr. Fox's past involvement with drugs but no criminal activity regarding possession of firearms. However, he is subject to a lifetime prohibition from possessing firearms.

Totality of the circumstances

[49] In reviewing the "totality of the circumstances" approach as laid out in Debot and Greffe and Garofoli, I find that the authorizing judge could not have granted the warrant and there was a breach of s. 8 of the Charter.

Grant analysis

[50] Now turning to the R. v. Grant[^16] analysis:

Seriousness of the Charter infringing state conduct:

• I find that the drafting by the police found in the ITO was not in accordance with the standard expected of law enforcement;
• The case law has developed to guide police enforcement regarding the detailed and compelling information required and corroboration on what is expected in ITO's;
• The police who draft the ITO's are trained in these matters;
• The police were not diligent in completing their own investigation other than a computer check to corroborate the information received from the informants;
• The Crown preferred to not request an amplification of the ITO to protect the privacy of the informant due to the small community;
• The size of one's community is not an indication of the level of privacy one expects under s. 8 of the Charter. The rights and freedoms under the Charter apply to everyone equally across Canada; and
• This analysis favours exclusion of the evidence.

Impact on the Charter-protected interests of the Applicant

• I find that the search of the residence was done in a respectful manner.
• However, this does not diminish the fact that the Applicant's residence where she should expect a high level of privacy was intruded on.
• The impact on the Applicant by this search in her home is serious as she resides with her two young children.
• This is not a fleeting or technical breach but intrusive.
• As stated in R. v. Grant at para. 78: "...an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not."
• In my view this analysis requires an exclusion of the evidence.

Society's interest in the adjudication on its merits:

• Society has a great interest in matters dealing with firearms and drug trafficking to be adjudicated at a trial on its merits. These are very serious charges and have serious consequences for the members of the public;
• The safety of the public is at risk with these types of charges and the public deserves a trial on their merits; and
• This analysis favours the inclusion of this evidence.

[51] Regarding the final stage of balance, I find that in review of all of the above factors set out above would conclude the exclusion of the evidence. I conclude that the admission of the evidence obtain by the Charter breaches would bring the administration of the justice into disrepute.

[52] This is not simply a question of whether the majority of factors favour exclusion. The Court must consider the long-term repute of the administration of justice.

[53] As stated in R. v. Hosie:

The courts should not be seen as condoning the use of language in search warrants which masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the state's interest in detecting crime outweighs the individual's privacy interest in his or her own home.

[54] After considering the three-step analysis in Grant and in all the circumstances discussed above, the Court finds in favour of the exclusion of the evidence as it would bring the administration of justice into disrepute.

[55] The Defence application is granted.

Justice A. Doyle

Date: July 7, 2021

APPENDIX

The amendments were made on page 13 of the decision as follows:

This sentence was deleted:

• In my view this analysis is neutral and does not favour either exclusion or inclusion.

Replaced by the following:

• The impact on the Applicant by this search in her home is serious as she resides with her two young children.
• This is not a fleeting or technical breach but intrusive.
• As stated in R. v. Grant at para. 78: "...an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not."
• In my view this analysis requires an exclusion of the evidence.

Court File No.: CR-20-2 Date: 2021-07-07

Ontario Superior Court of Justice

Re: Her Majesty the Queen v. Nicole Marie Fowler

Before: Justice A. Doyle

Counsel: Michael S. Mandelcorn, Counsel, for the Crown Lorne Goldstein, Counsel, for the Accused

Supplementary Amended Endorsement on Charter Application

Justice A. Doyle

Released: July 7, 2021

[^1]: Hunter et. Al. v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) [^2]: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) [^3]: Supra. [^4]: R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) [^5]: (1990) 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at p. 188 [^6]: R. v. Greffe 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755 [^7]: Pages 1456-57 [^8]: (1989) 53 C.C.C. (3d) 193 [^9]: (1986) 1986 CanLII 113 (ON CA), 17 O.A.C. 141, 30 C.C.C. (3d) 207 [^10]: [2005] O.J.No.551, at para. 78. [^11]: 1996 CanLII 450 (ON CA), 1996 107 C.C.C. 3d 385 (Ont. C.A.) at page 392. [^12]: 2014 ONSC 4900 [^13]: 2008 SCC 65. [^14]: 2007 ABCA 380. [^15]: (2000) 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.) [^16]: 2009 SCC 32, 2009 2S.C.R. 353