COURT FILE NO.: CR-19-90000776-0000
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JANET LIM-EXCONDE
Amanda Webb and Areille Elbaz, for the Crown
Lydia Riva, for Ms. Lim-Exconde
HEARD: October 7, 2021
REASONS FOR JUDGMENT ON S. 8 APPLICATION (Garofoli application)
R. MAXWELL J.
Overview
[1] The applicant Ms. Lim-Exconde stands charged with four counts of possession of controlled substances for the purpose of trafficking and one count of possession of proceeds of crime arising from the execution of a search warrant at 1909-5 Brockley Drive in Toronto on April 3, 2018. She seeks to have the evidence obtained as a result of the search warrant excluded from her trial on the basis that her rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated and that, in the circumstances, admitting the evidence would bring the administration of justice into disrepute.
[2] On November 1, 2021, the matter returned before me for judgment on the application, however the applicant was unable to appear for medical reasons. In brief oral reasons, I advised counsel that the application was dismissed and that I would provide written reasons. These are my reasons.
Issues on the Application
[3] The central issue in this application is whether the search warrant should be set aside and the search leading to the discovery of the controlled substances deemed warrantless.
[4] The Information to Obtain (“ITO”) in support of the search warrant is based on information police received from two confidential sources (“CS#1” and “CS#2”).
[5] The version of the ITO provided to the defence was heavily redacted because of informer privilege. The Crown conceded that the redacted ITO could not support the issuance of the search warrant. As a result, the Crown sought to rely on “Step 6” of the procedure contemplated by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461. This procedure permits the reviewing judge to consider as much of the unredacted ITO as necessary to support the authorization, but only if “the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”: Garofoli, at p. 1461.
[6] Counsel for the Crown, Ms. Webb and Ms. Elbaz, prepared a draft judicial summary of the undisclosed content of the ITO, which was provided to me only and marked as a sealed exhibit. I reviewed and provided comments on the proposed judicial summary. The Crown provided additional input on my comments. The document recording my comments and the Crown responding input was marked as a sealed exhibit. On the basis of my comments, certain revisions were made to the original judicial summary.
[7] I concluded that the revised version of the judicial summary provided the necessary information upon which the defence could participate meaningfully in an evaluation of whether the preconditions for issuing the warrant were met. Specifically, I concluded that the revised judicial summary provided a meaningful basis upon which to challenge whether the information provided by the confidential sources was credible, compelling, and corroborated.
[8] After reviewing the revised judicial summary, defence counsel Ms. Riva advised she was satisfied with the judicial summary.
[9] Based on the foregoing, I have considered the full unredacted ITO.
[10] Ms. Riva argues that on the basis of the judicial summary and the redacted ITO, the search warrant should not have been issued. She submits that the confidential source information relied on does not satisfy the requirements that the information be credible, compelling, and corroborated, as set out in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168. She challenges all three Debot factors, with particular emphasis on the lack of corroboration.
[11] She also argues that the affiant was not fully frank and fair in the ITO, in that he included irrelevant information, specifically, Ms. Lim-Exconde’s dated and unrelated criminal record and referenced charges that were withdrawn against her or that did not result in conviction. She points to the decision of R. v. Cobeil, 2013 ONSC 7411, at paras. 24-25, in which Gordon J. held that withdrawn or dismissed charges should not be included in an ITO, without some explanation as to why the information is being included. Ms. Riva argues that this is a factor which should be considered in determining whether the evidence in this case should be excluded under s. 24(2) of the Charter.
[12] The Crown concedes that the applicant’s withdrawn charges should not have been included in the affiant’s recitation of the applicant’s criminal record and accepts that this portion of the ITO should be excised. The Crown submits however, that the reference to the withdrawn charges could not have played a significant role in the justice’s evaluation of whether grounds existed to issue the warrant and that the balance of the information contained in the ITO amply supported the issuance of the warrant.
[13] For the reasons that follow, I do not agree that the warrant could not have been issued. I find that the information provided by CS#1 and CS#2 was sufficiently credible, compelling, and corroborated. While the degree of corroboration was lacking, there was some corroboration and combined with the highly compelling and credible nature of CS#1’s information, lead to a conclusion that the warrant could have been issued by the justice.
[14] I agree that the portion of the ITO which referenced withdrawn charges or charges which did not result in a conviction against the applicant must be excised from consideration. However, I find that the balance of the information concerning the applicant’s criminal record was properly included in the ITO and is consistent with the affiant’s obligation to be full and frank in his disclosure.
The Facts
Information from CS#1 in 2017
[15] In 2017, police received information from CS#1 that a male named “Nico” was selling crystal methamphetamine. CS#1 provided information that “Nico” was a crystal methamphetamine dealer who they had known for one year and from whom they had purchased crystal methamphetamine on several occasions.
[16] CS#1 provided specific details of direct transactions with “Nico”. CS#1 provided a phone number which he used to call “Nico” to arrange drug transactions. They advised that they typically bought one gram of crystal methamphetamine for $90 from “Nico” and that the drugs came pre-packaged and weighed in a small clear plastic baggie. They advised that they typically told “Nico” what they wanted and “Nico” would direct them to attend either his home address of 404-5235 Finch Avenue or a meth flop apartment at 5 Brockley Drive.
[17] CS#1 provided details of a specific transaction in 2017. They called “Nico” to buy one gram of crystal methamphetamine and attended at 404-5235 Finch Avenue to make the purchase. CS#1 was invited into the apartment and purchased one gram of pre-packaged crystal methamphetamine. During the transaction, CS#1 observed a clear zip lock bag the size of a sandwich bag on the living room table with what appeared to contain an ounce of crystal methamphetamine.
[18] CS#1 provided specific information about “Nico’s” selling practices. They advised that “Nico” could sell anywhere from one gram to an ounce at a time but would need a half a day to get a full ounce.
[19] CS#1 provided a physical description of “Nico” as Filipino, 5’ 9”, medium build, chubby face, late 30s, with short black hair. They identified a photo of Andronico Mantes as “Nico”. They also provided information that “Nico” drove a small newer model Toyota with licence plate BAYL 142 which he sometimes used to deliver crystal methamphetamine.
[20] Police conducted a check of the licence plate provided by CS#1 and confirmed that the plate was registered to a 2014 white Toyota in the name of Andronico Mantes.
Information from CS#1 in 2018
[21] Police received further information from CS#1 in 2018, within one week of the execution of the search warrant. CS#1 advised that they attended 404-5235 Finch Avenue East and bought two grams of crystal methamphetamine for $180. CS#1 advised that “Nico” was at the address with his girlfriend “Janet”. He was introduced to another male “Eric”. CS#1 indicated that they had met “Eric” previously at 1909-5 Brockley Drive. They described “Eric” as male, Filipino, in his late 30s, approximately 5’7” with a medium build and short black hair. CS#1 stated that “Eric” lived with “Janet” at 5 Brockley Drive and that “Eric”, “Janet” and “Nico” all work together in the drug business and conduct their business between the Brockley Drive address and the Finch Avenue address.
[22] CS#1 detailed a further transaction that took place later on that same night. CS#1 called “Nico” to arrange for a friend to buy half an ounce of crystal methamphetamine. “Nico” directed them to pick up the drugs at 1909-5 Brockley Drive. CS#1 detailed that when they arrived at 1909-5 Brockley Drive, “Nico” was not there, but “Janet” and “Eric” were present.
[23] CS#1 provided a detailed description of the layout of the Brockley Drive apartment, including that it was a two-bedroom unit, the location of the bedrooms, living/dining room, and kitchen vis-à-vis the main hallway of the unit. In the kitchen, CS#1 observed drugs on the table in a zip lock bag. CS#1 estimated that the larger bag of drugs contained 2-3 ounces of crystal methamphetamine. CS#1 detailed the transaction – “Eric” took methamphetamine from the bag and weighed it on a digital scale. “Janet” took the money and walked down the hall to a bedroom. As CS#1 and their friend were leaving the building, “Nico” arrived in his white Toyota and parked in the visitor’s parking.
[24] CS#1 described 1909-5 Brockley Drive as “very busy” and that it was not unusual for other customers to be present or to arrive while they were at the apartment.
[25] CS#1 positively identified a photo of the applicant as “Janet” who sold crystal methamphetamine to him. They identified “Janet” as “Nico’s” girlfriend. CS#1 also positively identified “Eric” as the male who worked with “Janet” and “Nico” and from whom he purchased crystal methamphetamine at 1909-5 Brockley Drive.
[26] CS#1 provided further information in 2018, again within one week of the execution of the search warrant. On this occasion, CS#1 purchased two grams of crystal meth for $180 from “Nico” by calling “Nico” on the same cell number previously used in 2017. “Nico” advised CS#1 that he was just leaving Brockley Drive and to meet him at the Finch Avenue address. “Nico” arrived at the Finch Avenue address in his Toyota with his girlfriend in the passenger’s seat and “Eric” in the backseat.
[27] “Nico” advised CS#1 to meet them in the lobby, as they were parking underground. CS#1 met “Nico”, “Janet” and “Eric” in the lobby of the building. Once inside unit 404, CS#1 observed “Nico” take out a set of scales from the table in the middle of the living room. He had a large bag of crystal methamphetamine and weighed out two grams from a large bag and placed the quantity in a smaller baggie. CS#1 gave “Nico” $180, which “Nico” added to a large bundle of money he removed from his pant pocket.
[28] CS#1 advised that the whole group sat together and smoked crystal methamphetamine following the sale. CS#1 recalled that during the conversation, “Nico” referred to “Eric” by his full name, “Eric Aquino”. CS#1 gave particular details of the conversation, specifically, that “Nico” and “Eric” were teasing each other about being Mexican and not Filipino. CS#1 stated that “Nico”, “Janet”, and “Eric” always had crystal methamphetamine available and that the product was of good quality.
[29] CS#1 provided specific details as to the location of apartment 404 within the building, that the balcony of the unit faced out to Middlefield Road, and described an identifying marker on the door of the unit (a Canadian flag sticker). They similarly described the location of apartment 1909 within the building located at 5 Brockley Drive.
Information from CS#2
[30] Police received additional information from a second source. The information was shared between officers in 2018, however the timeframe of when CS#2 provided their information is not disclosed in the ITO.
[31] CS#2 advised police that they knew a dealer named “Nico” in the Middlefield Road and Finch Avenue East area with a girlfriend named “Janet Lynn”. CS#2 knew “Nico” and “Janet Lynn” to live at 5235 Finch Avenue East but did not know the unit number.
[32] CS#2 provided details of “Nico’s” selling practices, including that “Nico” usually had two ounces of crystal methamphetamine in a clear Tupperware container and that “Nico” held drugs in his condo and car. CS#2 advised that “Nico” referred to crystal methamphetamine as “Tina”.
[33] CS#2 advised that they had last seen “Nico” in a yellow Mazda the week before. CS#2 knew “Nico” to own a 2011 four-door Mazda. “Nico” had two ounces of crystal methamphetamine with him. CS#2 detailed a purchase of a quantity of crystal methamphetamine from “Nico” three days earlier.
[34] CS#2 stated that Nico “re-ups” every two weeks and is known to always have crystal methamphetamine available.
[35] CS#2 stated that “Nico” owns a four-door Mazda and that they last saw “Nico” in a yellow Mazda parked at 5225-35 Finch Avenue East. They also described “Nico” as male, 30 years old, Filipino, 5’6” to 5’8” tall with a thick (fat) build and black hair.
[36] CS#2 indicated that they knew a lot of people who knew “Nico” as a crystal methamphetamine dealer.
Steps Taken to Corroborate Information
[37] Police conducted database checks and surveillance to corroborate aspects of the information provided by CS#1 and CS#2.
[38] Police database checks revealed that Andronico Mantes was associated to both 404-5235 Finch Avenue and 1909-5 Brockley Drive, the phone number provided by CS#1, and the vehicle described by CS#1. In a report from January of 2018 related to Mr. Mantes reporting his vehicle stolen, Mr. Mantes listed his address as 404-5235 Finch Avenue East and provided a phone number of 647-643-0411, the same phone number CS#1 provided to the police. The stolen vehicle report was taken at 5 Brockley Drive. Mr. Mantes reported to police that he had been visiting a friend at the 5 Brockley Drive address.
[39] As noted earlier, a check of the licence plate BAYL142 revealed that the plate was associated to a 2014 four-door white Toyota with an associated address of 404-5235 Finch Avenue. Andronico Mantes was the registered owner of the vehicle. Records revealed 19 reports on file with Toronto Police where tickets were issued to Mr. Mantes. Four of the tickets were issued at 5 Brockley Drive.
[40] Checks conducted on the address of 1909-5 Brockley Drive revealed that the applicant was listed as living at the address. In two separate police reports, the applicant’s address was listed as 1909-5 Brockley Drive.
[41] On April 1, 2018, an officer attended the address of 404-5235 Finch Avenue East and observed that the unit was located where CS#1 described when they detailed the directions to take after coming from the elevator. The officer also observed the identifying marker described by CS#1, a Canadian flag on the door under the peephole. The officer observed a white Toyota with the same licence plate provided by CS#1 in the underground parking garage. The same officer then attended 5 Brockley Drive and observed that unit 1909 was located where CS#1 described when they detailed the directions to the unit after coming from the elevator.
[42] On the basis of the information received, database checks, and address checks, police sought and obtained a search warrant for 1909-5 Brockley Drive.
[43] On April 2, 2018, a search warrant was issued by Justice of the Peace Johnson under s. 487(1) of the Criminal Code, R.S.C. 1985, c. C-46. The search warrant was executed on April 3, 2018 and resulted in the discovery of 305.7g of crystal methamphetamine, 21.9g of GHB, 3.0g of PCP, 3.8g of MDEA, drug paraphernalia, and $9400 in cash.
Analysis – Could the Authorizing Justice have Issued the Search Warrant on the Evidentiary Record Presented?
Relevant Legal Principles
[44] The applicant submits that the information received from the confidential sources was not compelling or credible, and that the police failed to adequately corroborate the information.
[45] The applicable legal principles on this issue are not in dispute and can be briefly summarized.
[46] Section 487 (1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.
[47] A search warrant is presumed to be valid and the onus is on the applicant to show that there was not sufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 45.
[48] The court reviewing a search warrant ITO does not stand in the place of the justice who issued the warrant, nor is it an opportunity for the reviewing court to substitute her view for the one of the issuing justice: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 84-87. Rather, as Watt J.A. summarized in R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99, leave to appeal refused [2012] S.C.C.A. No. 111:
[T]he reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.
[49] The standard of persuasion for the issuance of the warrant, reasonable and probable grounds, is a credibly-based probability. It requires more than an experience-based hunch or “reasonable suspicion”: Sadikov, at para. 81. It does not however mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-128; Debot, at p. 1166. The standard is that the affiant subjectively believes that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: See also R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 45-55.
[50] Where the police rely upon information from a confidential informant to meet this standard, the information must be assessed to determine whether it is compelling, whether it is corroborated by other aspects of the investigation, and whether the information is credible. These are not isolated inquiries. The totality of the circumstances must be considered and weaknesses in one area may be offset by strengths in another: Debot, at p. 1168.
[51] The standard of review is high. The reviewing court should not set aside the search warrant unless the applicant establishes, on the whole of the material presented, that there was no basis upon which it could have been issued. The court should look to a variety of factors in assessing information from a confidential informant, including the degree of detail of the “tip”, the informant’s source of knowledge, and indicia of the informer’s reliability such as past performance or confirmation from other investigative sources: Garofoli, at pp. 1454, 1456-57; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 16.
Was the Information Credible?
[52] Turning to the first consideration of the credibility of the confidential source information, this assessment relates to the trustworthiness of the source of the information. There is no single determinative factor. An informer’s motivation(s), his or her history of providing information to the police, and his or her criminal record are all relevant considerations: R. v. Woo, 2017 ONSC 7655, at para. 48.
[53] In this case, Ms. Riva argues that CS#1 is a “practiced” informant who is motivated by monetary compensation and who, because they are enmeshed in the drug culture, could easily come up with the details provided. She argues that the ITO is silent on details which would allow for any significant weight to be given to the fact that CS#1 has provided information in the past. Specifically, she argues that the ITO lacks specificity as to the nature of the information CS#1 provided in the past, whether it was specific to crystal methamphetamine, and whether CS#1’s information actually assisted the police in the investigations or led to evidence being seized.
[54] In my view, there are a number of factors which support CS#1’s credibility. First, CS#1 has provided information to the police in five prior Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) investigations, each resulting in the seizure of controlled substances. The Court of Appeal for Ontario recognized, in R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, at para. 21, aff’d 2011 SCC 49, [2011] 3 S.C.R. 364, that an informer’s proven history of providing reliable information concerning the same subject matter in the past is evidence that tends to support a conclusion that the source is reliable and credible.
[55] I do not accept the applicant’s submission that one would need to know what specifically was seized in any prior cases in which CS#1 provided information to the police (although this information was available to the issuing justice). CS#1 provided information in multiple cases involving CDSA investigations where evidence was recovered. The fact that they have been used repeatedly to provide information is some indication that their information is reliable, credible and contributed, at least to some extent, in the recovery of evidence in those cases. Moreover, CS#1’s credibility is not tainted or bolstered by the ultimate result of the investigation, that is, whether or not the prosecution related to the investigations resulted in convictions: R. v. Nguyen, 2015 ONCA 753, 342 O.A.C. 144, at para. 12.
[56] Second, CS#1’s motivation was known to the issuing justice. They have no criminal record or outstanding charges, therefore their motivation was not linked to obtaining consideration for any outstanding charges. The ITO reveals that their motivation was financial. I agree with the comments of Goldstein J. in R. v. Kebede, 2018 ONSC 6304, at para. 36, that the motivations of confidential informants do not necessarily bear strongly on an assessment of their credibility. CS#1, like many informants, is part of the drug subculture and is in a position to know and see things relevant to investigations of drug trafficking. That exposure may give CS#1 more opportunity to gather detailed information through direct and indirect encounters with drug dealers. I do not agree that this amounts to CS#1 being a “practiced” source or the suggestion that informants who live a drug lifestyle have coached themselves to provide information that will suit their needs. In any event, even if an informant is motivated by money or other considerations, if the informant provides detailed information and has a track record of providing reliable information, their credibility is not necessarily undermined by their motivations.
[57] Overall, I find CS#1 to be a credible source.
[58] With respect to CS#2, Ms. Riva argues that there is very little known about CS#2’s credibility and what is known raises questions about their credibility. She points specifically to the fact that CS#2 had outstanding charges at the time the ITO was sworn. She argues that it is reasonable to infer that CS#2 received consideration on their outstanding charge(s) in exchange for information. Further, while the specifics of the charge(s) are redacted from the ITO, she argues that the nature of the outstanding charges, to the extent that they may show general dishonesty or a motive to fabricate information, may also impact on CS#2’s credibility.
[59] I agree with Ms. Riva that there are some concerns with respect to CS#2’s credibility. Very little is known about CS#2 and, unlike CS#1 who has given reliable information in the past, the ITO does not disclose a similar track record for CS#2. Indeed, the Crown concedes that, other than the fact that they have outstanding charges, there is a lack of information going to CS#2’s credibility in the ITO.
[60] However, as the jurisprudence makes clear, the Debot factors should not be viewed in isolation from each other. Where weakness exists with respect to one factor, one or both of the other factors may make up for that weakness. In my view, that is the case here. As discussed below, CS#2’s information was reasonably compelling and corroborated CS#1’s information in material ways. These factors, to a large extent, make up for the weaknesses in CS#2’s credibility.
Was the Information Compelling?
[61] The information of both sources, but particularly CS#1, was highly compelling. CS#1 gave detailed descriptions of specific drug transactions which occurred at both the Finch Avenue address in 2017 and 2018, and the Brockley Drive address in 2018. They detailed information about the drug purchasing process, including providing descriptions of the packaging, quantities purchased, the cost of the drugs, the specific drug(s) purchased, and the method of distribution. They recounted specific details of events surrounding the purchase of crystal methamphetamine and the roles played by each person involved in the transactions. They provided a description of both apartments, a physical description of “Nico” and “Eric”, and identified “Nico”, “Eric”, and “Janet” in photographs.
[62] To a lesser degree, CS#2 also provided detailed information about buying crystal methamphetamine from “Nico”. While CS#2’s information did not relate to the Brockley Drive address, the detailed information they provided about the transaction that occurred at the Finch Avenue address, including what substance was purchased, in what quantities, and at what price, is corroborative of the information CS#1 provided about transactions they were involved in at both addresses. CS#2 also stated the connection between “Nico” and “Janet Lynn” as boyfriend and girlfriend.
[63] The intimate details of multiple direct drug transactions with the targets make the information provided by CS#1 and CS#2 highly compelling: R v. Reid, 2017 ONCA 430, at para. 29; R. v. Markiewicz, 2014 ONCA 455, at para. 2; Herta, at para. 42.
[64] Ms. Riva fairly points out that some of the details between CS#1 and CS#2 are inconsistent. For example, she submits that CS#1 described “Nico’s” vehicle as a white Toyota, whereas CS#2 described “Nico’s” vehicle as a yellow Mazda and said “Nico” dealt drugs from the vehicle sometimes. While clearly a discrepancy between their respective accounts, in my view, a discrepancy in the car models does not materially impact on the information that the sources provided. The information provided by CS#1 and CS#2 described drug transactions taking place at two addresses, not in a vehicle.
[65] Other alleged discrepancies are not, in my view, true discrepancies. Ms. Riva argued that CS#1 stated that “Nico” needed time to get an ounce of crystal methamphetamine whereas CS#2 said “Nico” carried two ounces of crystal methamphetamine in a Tupperware container. However, in the information CS#1 later provided in 2018, they also described “Nico” being in possession of 2-3 ounces of crystal meth in a zip lock baggie. Therefore, there is no serious discrepancy in the information on this point.
[66] She also pointed out that the ITO states that CS#2 reported last seeing “Nico” in a yellow Mazda “in the parking lot of 5225-35 Finch Avenue East”, which is different from the address of 5235-404, the address reported by CS#1 and which, based on police checks, is the address associated to “Nico”.
[67] However, read in the context of the rest of the ITO, I find that this discrepancy is, in all likelihood, the result of a typographical error and not a genuine inconsistency. I say this for several reasons. First, the affiant noted that CS#2 “knows both “Nico” and “Janet Lynn” to be living together at 5235 Finch Avenue East but is unsure of which condo he resides in.” This suggests that CS#2 knew the correct building (5235 and not 5225) and further, that CS#2 would not have specified a unit number because CS#2 did not know the unit number.
[68] Second, the affiant made similar errors in transposing numbers within known addresses in other parts of the affidavit. For example, in setting out his grounds for his belief that evidence would be found in the places to be searched, the affiant incorrectly noted the Finch Avenue address as “404-1909 Finch Avenue East” even though all the evidence he referred to was connected to the address of 5235 Finch Avenue East, unit 404. Clearly, the affiant intended to write 404-5235 Finch Avenue East, but transposed the street number on Brockley Street (1909) for the street number on Finch Avenue East (5235).
[69] The applicant has not established any significant inconsistencies in the information that undermines the compelling nature of the information that both CS#1 and CS#2 provided.
[70] Ms. Riva further argues that the ITO discloses insufficient detail as to the source of some of CS#1 and CS#2’s information, which goes to whether the information is compelling. For example, CS#1 gave no specific information as to how or if they ever contacted “Janet” or “Eric” directly. As another example, CS#1 stated that “Nico” needed time to get an ounce of crystal methamphetamine, but did not say how they knew this fact. CS#2 reported that “Nico” “re-ups” every two weeks, but the source of this information (i.e. whether it is first or secondhand information) is unknown.
[71] I accept that, in discrete places, the ITO does not disclose the source of CS#1 and CS#2’s information. However, as the degree of detail suggests, the bulk of the information provided by CS#1 and CS#2 was first-hand information. The instances in which the information was not clearly first-hand are relatively few and were apparent on the face of the ITO for the issuing justice to evaluate.
[72] Finally, Ms. Riva argues that CS#1’s account from 2017 is dated and that the currency of CS#2’s information is unknown, which tends to undermine the compelling nature of the information. I agree with Ms. Riva that the currency of the information is clearly relevant to the assessment of whether the information is compelling. However, the currency of the information must be looked at as a whole. While CS#1’s initial information from 2017 was somewhat dated, CS#1 also gave information on two additional occasions in 2018, within a week of the execution of the search warrant. The information from 2018 was highly detailed and consistent with information provided in 2017. Similarly, while the date of CS#2’s information was unknown, the information was quite detailed and is corroborative of many aspects of CS#1’s accounts, diminishing the impact of not knowing the currency of CS#2’s information.
Was the Information Sufficiently Corroborated?
[73] Finally, with respect to corroboration, it is true that the police could have done more to corroborate the information that CS#1 and CS#2 provided. The surveillance and database checks served to confirm some details, but the police could have conducted surveillance on both addresses to reinforce their belief that both locations were being used to traffick drugs. I agree with Ms. Riva that the bulk of the corroborative steps taken by police served to corroborate only that the two addresses exist and that one or more of the targets had an association to those addresses. That provides some, albeit limited, confirmation of the accuracy of the information.
[74] Similarly, the database checks related to the car confirm a connection between Mr. Mantes and both addresses and provide some confirmation of CS#1’s information about what vehicle “Nico” drove.
[75] I also agree that the applicant’s criminal record, and that of Mr. Aquino, do not provide information that corroborated the information from the confidential sources that the addresses were associated to drug trafficking. The fact that the applicant’s criminal record includes convictions for drug possession does not add corroborative value to the confidential source information that the applicant was involved in drug trafficking with “Nico” and “Eric”, or her ties to either address. Eric Aquino’s criminal record is unrelated to drug trafficking and does not serve to corroborate the information provided about drug trafficking at the two addresses, or any links between the targets.
[76] However, it is important to note that, in addition to the modest corroborative value of the police checks and surveillance, the information of CS#1 and CS#2 is corroborative of each other. Both sources said they purchased crystal methamphetamine from “Nico” and described “Nico’s” drug-selling practices, both described a connection between “Nico” and the applicant, both provided physical descriptions of “Nico”, both knew he lived at the Finch Avenue address, and both described detailed, first-hand drug transactions involving “Nico”. CS#1 and CS#2 are independent of each other and the details of their respective accounts add strength to the factor of corroboration on the Debot analysis.
[77] Moreover, as indicated earlier, the Debot factors must be looked at together and not in isolation. The review must be conducted on the totality of the circumstances, which include the degree of detail of the “tip”, the informant’s source of knowledge, and indicia of the informer’s reliability, such as past performance or confirmation from other investigative sources: Garofoli, at pp. 1454, 1456-57; Rocha, at para. 16. When looked at as a whole, the compelling nature of the information and the strong credibility of CS#1 compensate for the weaknesses in corroborating the information.
Conclusion
[78] I am not persuaded that the authorizing justice could not have determined that the information from the confidential sources established reasonable grounds to believe there were controlled substances, specifically crystal methamphetamine, at the Brockley Drive address.
[79] It is not necessary for me to consider s. 24(2) of the Charter, given my conclusion that there is no breach of s. 8 of the Charter.
[80] I thank both counsel for their professionalism and excellent advocacy.
R. Maxwell J.
Released: November 30, 2021
COURT FILE NO.: CR-19-90000776-0000
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JANET LIM-EXCONDE
REASONS FOR JUDGMENT ON S. 8 APPLICATION (Garofoli application)
R. Maxwell, J.
Released: November 30, 2021