COURT FILE NO.: CR-20-43
DATE: 20211005
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KYLE SMITH
Defendant
Trevor Pellerine, Chris Heron, for the Crown Respondent
Jenny Prosser, for the Defendant Applicant
HEARD: June 10, 2021 via Zoom
TRANQUILLI j.
Ruling re Application to Exclude Evidence re s. 8 & 9 of the Charter
Overview
[1] The Applicant is charged with four counts of possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and five counts of firearm offences contrary to ss. 86(1), 88(1), 92(1), 92(2) and 95(1) of the Criminal Code.
[2] At issue is whether the search warrant that led to the seizure of evidence from his home and his arrest should have been authorized.
[3] In the summer and fall 2018, a Confidential Informant told police that Matthew McSloy was trafficking Fentanyl near his home at 423 Kathleen Avenue and that the Applicant stored the Fentanyl in his basement residence at the same address.
[4] Police investigated these allegations between October 29 and November 7, 2018. On November 9, 2018, the police obtained a search warrant for “a residence”, outbuildings and a detached garage at 423 Kathleen Avenue. The warrant authorized police to search for Fentanyl, scales, packaging, debt lists, currency, cell phones, or other electronic media storage devices.
[5] The authorization was issued pursuant to an Information to Obtain a Search Warrant (ITO) sworn by Constable Jeff Smith of the Royal Canadian Mounted Police, on secondment to the London Police Service.
[6] Police executed the search warrant later that same day. The search produced quantities of Fentanyl, hydromorphone and oxycodone, cell phones and a 9 mm semi automatic handgun with a loaded extended magazine. They arrested the applicant in his basement suite and Mr. McSloy and another individual on the main floor of the home.
The Application
[7] Mr. Smith applies for an order excluding all evidence gathered in execution of the search warrant pursuant to s. 24(2) of the Charter. The Applicant claims the ITO is deficient in three respects: 1. The CI information was not compelling, credible or corroborated; 2. The ITO contained misleading, prejudicial or inaccurate information which ought to be excised; and 3. What remains of the ITO failed to disclose reasonable and probable grounds to believe that evidence of trafficking fentanyl would be located in Mr. Smith’s basement residence at 423 Kathleen Avenue.
[8] The Applicant submits the effect of these deficiencies means the search of his residence was unreasonable contrary to s. 8 of the Charter and his resulting arrest therefore arbitrary, contrary to s. 9 of the Charter. The careless and improvident drafting of the ITO led to an invasion of the applicant’s right to privacy in his own home that can not saved by s. 24(2) of the Charter.
[9] The Crown submits a proper contextual consideration of the totality of the circumstances demonstrates there were reasonable and probable grounds for the search warrant to issue such that there was no violation of the applicant’s s. 8 Charter rights. The information from the CI was compelling, credible, and corroborated. As the ITO is valid, the applicant’s arrest was not in breach of s. 9 of the Charter. If there was a breach of the applicant’s Charter rights, the evidence should nevertheless be admitted under s. 24(2) of the Charter as the police made good faith efforts to obtain a warrant and any shortfall in the grounds relied upon to search the residence was minor.
Issues
[10] The warrant is presumptively valid unless the applicant establishes on a balance of probabilities there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588 at para. 45.
[11] In determining whether the Applicant has met his onus to demonstrate there was no basis in law for the search warrant to have issued and therefore an irredeemable breach of his ss. 8 and 9 Charter rights, there are four main issues to address:
Was the information from the CI and Crime Stoppers tips compelling, credible, and corroborated?
Are there statements in the ITO which ought to be excised?
Does what remain of the ITO disclose reasonable and probable grounds to believe that evidence of trafficking would be found in the applicant’s residence?
If the ITO failed to disclose reasonable and probable grounds that evidence of the offences would be found in the applicant’s home, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[12] There was discussion before the hearing as to whether the Crown intended to call evidence to amplify the record and/or to address the circumstances of the applicant’s arrest. However, there were issues as to how the witnesses would be called due to pandemic restrictions. The Applicant insisted on an in person hearing in the event of viva voce testimony, whereas the Crown and witnesses would only agree to participate remotely. In any event, at a readiness conference the Crown advised it would rely only on the redacted ITO and Tearaway Appendix regarding the CI. The application therefore proceeded as a facial challenge in a virtual hearing.
[13] However, during the hearing, the applicant argued the Crown had insufficient grounds to support the applicant’s arrest as being compliant with s. 9. The parties ultimately agreed that limited evidence of the arresting officer could be adduced from the preliminary hearing transcript. This evidence was of questionable relevance as it spoke only to an officer’s encounter with the applicant upon entering the basement unit pursuant to the warrant. It was unclear whether he was the arresting officer. In any event, I conclude this aspect has no bearing on the issues for determination. It was clear from the central submissions that the Applicant’s contention is the unconstitutionality of the Applicant’s warrantless arrest flowed from the alleged unconstitutional search of his basement residence. The focus is therefore whether ITO supports a credibly-based probability that the search of the location will lead to evidence of a crime: R. v. Bui, 2014 ONSC 8 at para. 49.
Background
[14] The redacted ITO and Tearaway Appendix contained the following details in support of the search warrant.
[15] The CI told police in summer/fall 2018 that Mr. McSloy was an ounce level trafficker of fentanyl in and around his home at 423 Kathleen Avenue and that Mr. McSloy worked with the applicant, who stored fentanyl in his basement suite at the same address.
[16] A background inquiry showed the Applicant was charged with possession of Fentanyl for the purpose of trafficking in 2016.
[17] Three Crime Stoppers tips between 2015 and summer 2018 alleged Mr. McSloy was trafficking from his Kathleen Avenue residence. Other background information included reports about Mr. McSloy’s involvement in or association with the drug subculture between 2012 and 2017, including an anonymous tip he was regularly trafficking from a parking lot near his home. In September 2018, the homeowner of 423 Kathleen Avenue, Mr. McSloy’s grandmother, reported a break and enter that happened in August. In the investigation of that occurrence, she told police the applicant was her basement tenant. Mr. McSloy told police he believed the break and enter was a home invasion as one of the two suspects stated he was a “junkie”.
[18] On four occasions between October 31, 2018 and November 7, 2018, surveillance showed Mr. McSloy using a cell phone and briefly meeting other individuals at parking lots near his home or in the driveway of the Kathleen Avenue residence. Background checks showed that in three of these meetings, the individuals were known to be associated with the drug subculture. Mr. McSloy was seen leaving the main unit of Kathleen Avenue before and after each of these meetings. The circumstances of these brief meetings suggested to Constable Smith that the meetings were arranged drug transactions and that Fentanyl and other trafficking evidence would be found in the residence.
[19] Surveillance showed two hydro meters on the exterior of the residence, suggesting to Constable Smith that the residence was split into two units. Mr. Smith was observed on only one occasion, on October 31, 2018. He was seen walking from the rear of the residence, met Mr. McSloy’s grandparents in the driveway of 423 Kathleen Avenue, whereupon they all got into a car and drove to a shopping mall.
[20] Constable Smith could not say if the basement and main unit of 423 Kathleen Avenue were connected inside the residence. If they were connected, he theorized it would be easy for the Applicant and Mr. McSloy to move the Fentanyl between the two units undetected.
Analysis
[21] A valid search and seizure requires reasonable and probable grounds established on oath to believe that an offence has been committed and that there is evidence of that offence to be found in the place of the search. These distinct and cumulative requirements form part of the minimum standard consistent with s. 8 of the Charter for authorizing search and seizure: R. v Morelli, 2010 SCC 8 at para. 39.
[22] I now turn to consideration of the four issues raised in this application.
1. Was the information from the CI and Crime Stoppers tips compelling, credible and corroborated?
[23] The Applicant submits the CI and Crime Stoppers information was not compelling, credible or corroborated, such that the warrant should not have issued. It is not apparent from the face of the redacted ITO and Tearaway as to whether the information from these sources was firsthand knowledge or based on rumour. The information also suffered from a general lack of detail as to dates and biographical information about Mr. McSloy and the Applicant. The Crime Stopper tips were no more than improper “boot-strapping” to raise a cloud of suspicion about Mr. McSloy. These weaknesses increased the need for a higher level of verification of the CI’s information. However, the redacted ITO and Tearaway Appendix fall short of this requirement. More was required to corroborate the CI’s assertion that the drugs were stored in the basement unit.
[24] The Crown submits the Applicant is conducting a piecemeal analysis of the ITO. An informant’s information must be considered on the totality of the circumstances to assess the reasonableness of the search. The CI was a proven source and much of the CI’s information was confirmed in the investigation. Although the sources of the Crime Stoppers tips were not proven informants, the nature of the information was consistent and corroborated by other aspects of the investigation. Cumulatively, the information was compelling, credible and corroborated.
[25] The CI advised that Mr. McSloy was an ounce level trafficker of fentanyl in and around 423 Kathleen Avenue and that the fentanyl was stored in the basement unit. Although not apparent from the redacted Tearaway Appendix, the affiant deposed that the CI reported that the Applicant worked with Mr. McSloy in trafficking and stored the fentanyl in the basement suite where he lived.
[26] I will allow that the redacted ITO and Tearaway lacks detail as to the extent of the CI’s firsthand knowledge of trafficking and storage of the drug in the basement. The redacted Tearaway notes the CI bought Fentanyl from Mr. McSloy and that Mr. McSloy got the drug from the basement but does not explain the basis of the CI’s knowledge about the basement. This arguably affects the extent to whether the information was compelling. However, the factors of “compelling, credible and corroborated” do not form separate tests. It is the totality of the circumstances that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strength in the other two areas: R. v. Debot, 1989 13 (SCC), [1989] 2 SCR 1140 at 215.
[27] The available information supports that the CI is a credible source. The ITO and Tearaway conveys that previous information provided by the CI was used for granting judicial authorizations and led to the recovery of controlled substances and arrests. Subsequent police investigation corroborated other aspects of the CI’s information in this case. Reliability of an informant may be established by past performance as an informant or by confirmation from other investigative sources of part, or all of the information provided by the informant: R. v. Caissey 2007 ABCA 380 at para. 22.
[28] To that end, the police investigation corroborated many aspects of the CI’s tip. Surveillance and background inquiries revealed circumstantial evidence of Mr. McSloy’s illicit activities at or near the residence at 423 Kathleen Avenue, including at nearby parking lots identified by the CI. Investigation confirmed the identities of the Applicant and Mr. McSloy, the existence of a basement unit and that the Applicant was a tenant of the basement unit. Surveillance showed the Applicant near the house in the week before the search warrant was executed. While the investigation revealed little confirmatory detail about the nature of the basement unit, the surveillance was at least consistent with the information that the Applicant lived there, as confirmed by the landlord to police one month earlier.
[29] I find the information provided by the three Crime Stoppers tips were compelling in their specificity and consistency over a three-year period between 2015 and 2018 and are not “boot-strapping” as characterized by the Applicant. Each tip identified the residence at 423 Kathleen Avenue as the source of Mr. McSloy’s trafficking activities in the immediate neighbourhood. The subsequent police investigation confirmed activities consistent with those tips and compensates for the anonymity of the tipsters.
[30] I accordingly conclude that on a consideration of the totality of the circumstances, the information from the CI and Crime Stoppers tips was compelling, credible and corroborated.
2. Are there statements in the ITO which ought to be excised?
[31] The Applicant submits the ITO contains a host of improper statements and misleading overstatements which ought to be removed from the ITO as part of this review:
a. The ITO reported the Applicant had been charged with possession of fentanyl for the purpose of trafficking in 2016; however, did not mention the disposition of the charge. The affiant nevertheless claimed in the concluding comments of the ITO that the Applicant had a “history” of possessing fentanyl for the purpose of trafficking;
b. The limited history of Mr. McSloy’s personal drug use and involvement in the drug subculture, including prior charges which were either withdrawn or for which there was no information as to disposition;
c. The ITO claimed the Applicant was seen leaving from the “basement unit”, whereas at most, the police only observed him walking from the rear of the house to meet Mr. McSloy’s grandparents in the driveway;
d. It is not clear from either the redacted ITO or the Tearaway whether the CI, in fact, advised police that the Applicant lived in the basement unit. At best, the CI’s allegation was that the Applicant and Mr. McSloy stored fentanyl in the basement; and
e. There is a patent error in the ITO’s information as to whether one of the alleged purchasers from Mr. McSloy was or was not involved in drug subculture.
[32] A reviewing court must exclude erroneous information on its review of the ITO. The question is then whether the remaining evidence supports the warrant: R. v. Morelli, supra at para. 41.
[33] The Crown acknowledged a patent discrepancy in the ITO as to the history of one individual seen interacting with Mr. McSloy on November 1, 2018 in a presumed drug transaction. From a plain reading of the contradictory statements in the affidavit, this person either did or did not have known ties to the drug subculture. These statements are therefore excised from the ITO for this review.
[34] The Applicant argues that inconclusive information about his 2016 criminal charges along with similarly vague information as to his co-accused should be excluded as it is no more than “character-damaging rhetoric”, promoting improper judicial reasoning: R. v. Sam, 2014 ONCJ 144 at para. 12.
[35] I acknowledge it would have been helpful to understand the status or disposition of the Applicant’s 2016 drug trafficking charge. However, I accept the Crown’s argument that on the whole, this information as to the Applicant’s previous charge and Mr. McSloy’s historical connections with drug use and/or trafficking was contextually appropriate in outlining evidence as to the Applicant’s and Mr. McSloy’s involvement in drug crime activity: R. v. Tohl, 2012 ONCA 9 at para. 8. While these statements can be characterized as reputational information, it is specific and connected to the reasons for the search: R. v. Debot, 1989 13 (SCC), [1989] 2 SCR 1140 at para. 58. I therefore do not accept the Applicant’s argument that such information was no more than character-damaging rhetoric.
[36] I do accept that the officer’s statement in the concluding paragraphs of the ITO as to the Applicant’s alleged “history” of possession of fentanyl for the purpose of trafficking is an overstatement based upon the facts outlined in the ITO. There are only details as to a 2016 charge and nothing as to its disposition. This is not an established “history” of possession, but rather a history of a previous charge for possession. That overstatement should be excised from the ITO for the purposes of this review.
[37] Similarly, the officer’s statement in the concluding paragraphs of the ITO that the Applicant was seen leaving from the basement unit is an overstatement. The officer’s summary of the surveillance from October 31, 2018 clearly stated that the Applicant was seen approaching the driveway at 423 Kathleen Avenue from the rear of the building. While such an inference may be understandable, no other facts were referred to in the redacted ITO from which it would be reasonable to conclude the Applicant emerged from the basement unit. This statement will also be excised from the ITO for the purposes of this review.
[38] I will defer consideration of whether the remaining ITO supports the search until consideration of the third issue, being whether what remains of the ITO discloses supports a credibly-based probability that an offence has been committed and that there was evidence of the offence to be found in the in the applicant’s basement residence
3. Does what remain of the ITO disclose reasonable and probable grounds to believe that evidence of trafficking would be found in the applicant’s residence?
[39] The Applicant submits the ITO was unreasonably broad and insufficient as it related to the proposed search of his home. This omission was critical as each unit was a separate private dwelling requiring consideration of the grounds to search each residence.
[40] The Applicant contends the police failed to complete any due diligence to identify the basement unit as a separate dwelling beyond simply noting two hydro meters on the building exterior. There was only the information from the CI as to Fentanyl being kept in the basement unit, one observation of the Applicant coming from the rear of the house and a vague history of the Applicant once having been charged with criminal drug activity. The bulk of the investigation summarized in the ITO highlighted Mr. McSloy’s history and activities and his comings and goings from the main floor unit, with little to implicate the Applicant or the basement unit.
[41] The Applicant points to the grounds proposed for searching the garage and outbuildings on the property as further evidence of the overly broad “boiler plate” approach in drafting this ITO, The Applicant notes a lack of detail about the location of these structures on the property and an absence of any objective information connecting those locations to the alleged criminal drug activity.
[42] I have considered the ITO as a whole after removing the statements that are either erroneous or misleading to determine whether sufficient grounds remain on a reading of the ITO as a whole on which the warrant could have been authorized: R. v. Araujo, 2010 SCC 65 at para. 52.
[43] There is a high expectation of privacy in a residence. This principle should be reflected by clearly setting out the reasonable and probable grounds for each unit of a multi-dwelling building proposed to be searched in the ITO: R. v. Campbell, 2011 SCC 32 at para. 15. However, there is no investigative necessity prerequisite to the issuance of a warrant to search a house, nor is there an obligation on the police to explain every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing months or even years after the event: R. v. Paxton, 2016 ONSC 2906 at para. 31.
[44] The search warrant is for a place, not a person. The ITO suffered from a lack of precision and contained overstatements in its conclusory or summary paragraphs. However, with the exclusion of those statements, I am satisfied that consideration of the remaining ITO as a whole still established reasonable and probable grounds to believe an offence had been committed and that evidence of the offence would be located in the basement unit: R. v. Campbell, 2010 ONCA 588 at para. 55.
[45] The information from the CI and Crime Stoppers tips were compelling, credible, and corroborated in implicating the house at 423 Kathleen Avenue in drug trafficking activity. The CI clearly identified the basement unit of 423 Kathleen Avenue as the place where the controlled substance was unlawfully kept. The CI, a proven source, specifically identified the Applicant and the basement suite as being involved in the enterprise. Investigation confirmed recent information from the landlord that the Applicant rented the basement unit at that address. The ITO identified the grounds for believing there were two separate dwellings at 423 Kathleen Avenue and that the basement dwelling was connected to the illegal activity. The ITO reported there appeared to be two separate residences at that address based upon the hydro meters and cited recent and specific information in September 2018 where the homeowner told police she rented the basement unit to the Applicant. Surveillance showed the main floor occupant to be engaging in activity consistent with drug trafficking at or near the home. Both Mr. McSloy and the Applicant had histories that connected them to the offence.
[46] Constable Smith has years of experience in drug investigations. An affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief: Bui, supra at para. 49. The officer noted the observations of Mr. McSloy engaging in activity consistent with illegal drug trafficking at or near 423 Kathleen Avenue and set out his belief based upon his experience that it was likely the drugs were stored in the home and specifically, in the basement, as it was unlikely Mr. McSloy would keep significant quantities on his person. The affiant expressly acknowledged a lack of information as to whether the main and basement units had an interior connection. In these circumstances, while additional information as to the occupancy and layout of the house may have been illuminating, these details are unnecessary to address the sufficiency of the warrant to search the basement unit.
[47] I do not agree the stated grounds for searching the garage and outbuilding evidences a careless and boilerplate approach to the proposed search from which one can infer the search of the basement was also unjustified. Constable Smith noted the recent report of a break and enter or “home invasion” as described by Mr. McSloy to police in September 2018. Based upon the officer’s experience in drug investigations, this would mean Mr. McSloy could look to conceal the drugs in other easily accessible locations on the property in order to prevent robbery and avoid police detection, such that evidence of the offence may be found in those locations at the same address.
[48] I accordingly conclude the ITO discloses reasonable and probable grounds to believe a drug trafficking offence had been committed and that evidence of trafficking would be found in the applicant’s residence.
4. If the ITO failed to disclose reasonable and probable grounds that evidence of the offences would be found in the applicant’s home, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[49] If I am mistaken as to the validity of the search warrant, I will address whether the evidence ought to be excluded in the interest of the administration of justice. This involves a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32.
- The Seriousness of the Charter-Infringing State Conduct;
[50] While some statements in the ITO were misleading or an overstatement, it goes too far to conclude the police acted deceitfully or in wilful or reckless disregard of the applicant’s Charter rights. Police took steps to obtain a warrant to permit search of the house, and specifically identified the basement unit as a separate residence. This step evidences consideration of the applicant’s Charter rights and the need for reasonable and probable grounds. To the extent there was any Charter-infringing conduct in terms of the way in which the ITO was drafted and found lacking, I find it is at the low end of the spectrum and at most fell minimally short of satisfying the reasonable grounds threshold: R. v. Puskas, 1997 1159 (ON CA) at para. 16. This step of the analysis favours inclusion.
- The Seriousness of the Breach on the Charter-Protected Interests
[51] This step of the inquiry calls for an evaluation of the extent to which the breach undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive: Grant, supra at para. 76. The Crown properly acknowledges that the search of the Applicant’s residence had a serious impact on his privacy interests. This factor favours exclusion.
- Would admission of the evidence would undermine public confidence in the administration of justice?
[52] This line of inquiry reviews whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The long-term repute of the justice system is the focus of s. 24(2): Grant, supra, at paras. 79-84.
[53] The controlled substances, cell phones, firearm and ammunition are real evidence and non-conscriptive in nature. The reliability of this evidence is unaffected by the Charter issues. Excluding the evidence would almost certainly lead to the Applicant’s acquittal. There is a strong societal interest in seeing this case determined on its merits.
[54] The court must now balance these factors to decide, having regard to all the circumstances, whether admission of the evidence would bring the administration of justice into disrepute. In practical terms, this becomes important when one, but not both of the first two inquiries pushes strongly toward the exclusion of evidence: R. v. McGuffie, 2016 ONCA 365 at para. 63
[55] The first and third factors favour inclusion, whereas the second factor highlights the applicant’s privacy interest in his home and favours exclusion.
[56] On balance, I find that if there was a s. 8 Charter breach and therefore a consequent s. 9 breach, the evidence should nevertheless be admitted. High privacy interests attach to the Applicant’s home; however, there were demonstrable efforts to establish reasonable and probable grounds for a search of the basement. If those grounds fell short, it was minimally so. In contrast, there is a strong societal interest in addressing trafficking of dangerous controlled substances and the illegal and dangerous presence of firearms in the community.
[57] I conclude that admission of the evidence from the applicant’s basement home would not bring the administration of justice into disrepute.
[58] I therefore find the evidence is not excluded by s. 24(2) of the Charter.
[59] The application is dismissed.
Justice K. Tranquilli
Released: October 5, 2021
COURT FILE NO.: CR-20-43
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KYLE SMITH
Defendant
REASONS FOR JUDGMENT
Tranquilli J.
Released: October 5, 2021