Her Majesty the Queen v. Christopher Janisse

COURT FILE NO.: CR-21-90000-173

DATE: 2021-10-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— and —

CHRISTOPHER JANISSE

COUNSEL:

Amanda Webb and Bari Crackower for the Crown

Gregory Lafontaine for Mr. Janisse

HEARD: September 20 and 21, 2021

RULING ON APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) [CHARTER OF RIGHTS](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

CORRICK J.

Overview

[1] Christopher Janisse is charged with possession of cocaine, fentanyl and crystal methamphetamine for the purpose of trafficking, four counts of trafficking in cocaine, and possession of proceeds of crime of a value exceeding $5,000.

[2] Police received information from a confidential informant that Mr. Janisse was trafficking cocaine in the Greater Toronto area. As a result, police investigated Mr. Janisse throughout May and June of 2019. On June 3, 2019, an application by police for a tracking warrant, general warrant and production order were denied. On June 6, 2019, a tracking warrant authorizing police to install a tracking device on Mr. Janisse’s car was granted.

[3] On June 19, 2019, police obtained two separate general warrants. One warrant authorized police to covertly enter an address believed to be used by Mr. Janisse as a stash house. Once executed, the police found significant evidence of drug trafficking. Information garnered from the June 6 tracking warrant, together with further surveillance, formed the basis of the request for the general warrants.

[4] The investigation concluded, and Mr. Janisse was arrested in the stash house handling bricks of cocaine. Police seized 15 kilograms of cocaine and two kilograms of fentanyl from the stash house. They also seized $96,000 from a compartment in Mr. Janisse’s car.

[5] Mr. Janisse argues that the tracking warrant could not have been issued based on the information presented to the issuing justice. The evidence obtained from the tracking warrant formed the basis of the application for the subsequent general warrant. Given that the initial tracking warrant was improperly issued, all subsequent authorizations and any evidence obtained from their execution violated Mr. Janisse’s right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter of Rights and Freedoms, and ought to be excluded.

Procedure on the Application

[6] The Information to Obtain the Tracking Warrant (ITO) was sworn by Officer Wilson. His grounds for seeking the warrant relied heavily on information provided to the police by a confidential informant. To protect the identity of the confidential informant, the Crown disclosed a redacted version of the ITO to defence counsel together with a draft judicial summary of the redacted portions.

[7] At the outset of the application, the Crown informed me that they wished to rely on step six of the procedure outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. This would permit me to review and consider the redacted portions of the ITO when determining whether the conditions precedent for the issuance of the warrant were satisfied. Before the Crown can rely on step six, a judicial summary of the redacted information must be provided to the defendant that makes the defendant sufficiently aware of the nature of the redacted information to challenge it by evidence or in argument.

[8] Prior to hearing argument, I was given a copy of the unredacted ITO that was before the issuing justice, and a copy of a draft judicial summary annotated with the source of the information. These documents were made sealed Exhibits 3 and 4 on the application. After reviewing the documents, I made written suggestions to the Crown regarding changes to the proposed judicial summaries. My suggestions were marked as sealed Exhibit 5.

[9] The Crown accepted my suggestions. A revised judicial summary was provided to Mr. Lafontaine, counsel for Mr. Janisse. I was satisfied that it provided Mr. Lafontaine with sufficient information to evaluate whether the preconditions for issuing the warrant were met. I was also satisfied that no further information could be provided without violating confidential informant privilege. Mr. Lafontaine did not challenge the revised judicial summary.

Positions of the Parties

[10] Mr. Lafontaine submits as follows. The material contained in the ITO was insufficient to support the issuance of the June 6 tracking warrant. The confidential informant information was not sufficiently compelling or corroborated by police in any material way. Information gleaned from the tracking warrant was used to obtain two general warrants on June 19, 2019 and ultimately search warrants obtained on June 26 and 27, 2019. The warrants issued after June 6 were tainted by the improper issuance of the June 6 tracking warrant. The evidence seized pursuant to these warrants was obtained in contravention of Mr. Janisse’s rights protected by section 8 of the Charter. As a result, the evidence obtained should be excluded pursuant to s. 24(2) of the Charter.

[11] The Crown submits that there was an ample basis upon which the tracking warrant could have issued. The information provided by the confidential informant was credible, compelling, and corroborated.

[12] Alternatively, the Crown submits that there were ample grounds to support the issuance of the June 19 general warrant without the information obtained from the tracking device.

[13] Finally, the Crown submits that if the court finds that Mr. Janisse’s s. 8 rights have been violated, a proper balancing of the factors in R. v. Grant, 2009 SCC 32 favours admission of the evidence.

Prior Application for Warrants

[14] On June 3, 2019, Officer Wilson applied for a general warrant to conduct surveillance in the common areas of a condominium complex associated with Mr. Janisse, a production order to obtain fob records, to view CCTV, and to obtain owner/tenant documents related to Mr. Janisse, and a tracking warrant for Mr. Janisse’s car.

[15] Justice Silverstein dismissed the application for the following reasons:

There is ample information to support reasonable and probable grounds that the target resides at the target address and owns the target vehicle. Yet the information provided does not make out probable grounds to believe that an offence against Parliament has been or will be committed pursuant to s. 487.01 of the Criminal Code. The confidential human source’s information is neither materially corroborated, nor is it sufficiently compelling.

[16] The fact that a prior application had been denied and Justice Silverstein’s reasons for denying it were both disclosed in the ITO before the authorizing justice.

The Standard of Review

[17] This is not a hearing de novo. I am not entitled to substitute my view for the view of the issuing justice. The test for the reviewing court is whether there was any basis upon which the warrant could have issued, not whether the reviewing court would have issued it. A reviewing judge should intervene only if there was no basis upon which the issuing justice could be satisfied that the pre-conditions for granting the warrant existed: See Garofoli, at paras. 67-68; R. v. Sadikov, 2014 ONCA 72, at para. 84.

[18] The warrant is presumed to be valid. Mr. Janisse bears the onus of demonstrating that it is invalid: Sadikov, at para. 83.

Tracking Warrants

[19] The standard for issuing a tracking warrant is set out in section 492.1(1) of the Criminal Code. The justice must be satisfied that there are reasonable grounds to suspect that an offence has been or will be committed and that tracking the location or movement of a vehicle will assist in the investigation of the offence.

[20] “Reasonable grounds to suspect” is a lower standard than “reasonable grounds to believe.” Suspicion deals with the reasonable possibility of crime, while belief deals with the reasonable probability of crime: R. v. Chehil, 2013 SCC 49, at para. 27.

[21] The Supreme Court of Canada distinguished a reasonable suspicion from a mere suspicion. A mere suspicion is a sincerely held subjective belief. A reasonable suspicion is supported by facts that can be adduced in evidence and permit independent judicial assessment: R. v. Kang-Brown, 2008 SCC 18, at para. 75.

[22] All the circumstances must be considered when determining if a police officer had a reasonable suspicion that the person under investigation is involved in criminal activity. While one circumstance, standing alone, may not be suspicious, when taken together with other circumstances, it may rise to the level of reasonable suspicion. The circumstances must be assessed through the eyes of a reasonable person armed with the knowledge, training, and experience of the police officer. The assessment must be grounded in common sense, and practical, everyday experience: R. v. MacKenzie, 2013 SCC 50, at paras. 71 and 73; R. v. Chehil, at para. 29.

The Debot “3 C’s” Analysis

[23] When a warrant is issued based on information received from a confidential informant, the reviewing court must determine whether the confidential informant’s information is compelling, credible, and corroborated. The “3 C’s” must be analyzed in the totality of the circumstances. It is not necessary that all three be present. Weaknesses in one area may be compensated by strengths in the others: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at p.1168.

[24] The issue is whether it was open to the authorizing justice to conclude that the information provided by the confidential informant, together with the other information in the ITO, established reasonable grounds to suspect that the offences of trafficking in a controlled substance and possession for the purpose of trafficking in a controlled substance had been or will be committed and that tracking the movement of Mr. Janisse’s car would assist in the investigation.

Was the Tip Compelling?

[25] The first factor to consider is whether the confidential informant’s information was compelling. How much detail was provided? Was the detail based on first-hand observations or rumour and gossip? Were the details provided widely known to many people? How current is the information: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 35.

[26] The ITO indicates that the confidential informant told police that a male known to them as “Chris” constantly drives around the GTA distributing cocaine.

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

Recency: The ITO discloses the recency of the confidential informant’s information.

Confidential informant’s knowledge of Mr. Janisse: Mr. Janisse was known to the confidential informant as Chris and was described as male, white, medium build, brown eyes, short, in his 30’s, clean shaven, and shaved head. The confidential informant identified Mr. Janisse from a single photograph shown to him. The nature of the relationship between the confidential informant and Mr. Janisse is disclosed in the unredacted ITO.

Vehicle: The confidential informant described the car that Chris drives as a 2014-2015 black Mazda with Ontario licence plate CBCS149.

Position of confidential informant: The ITO indicates that the confidential informant is immersed in the drug trafficking subculture.

Source of confidential informant’s information: The information provided by the confidential informant is first-hand information.

Details of criminal activity: The unredacted ITO sets out information about Mr. Janisse’s distribution of cocaine.

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

Is the confidential informant credible?

[29] To determine the confidential informant's credibility, I examined whether the confidential informant had provided reliable information in the past, whether the confidential informant had any motive for providing the information, what the motive was, and whether the confidential informant had a criminal record that included offences of dishonesty.

[30] Most of the details about the confidential informant have been redacted from the ITO disclosed to Mr. Janisse. The judicial summary and redacted ITO reveal that the following information was disclosed to the issuing justice:

• The confidential informant was a registered Confidential Human Source with the Toronto Police Service.
• The confidential informant has previously provided information to the police that resulted in arrests and seizures. The number of times the confidential informant has provided information, and details of resulting arrests and seizures were included in the unredacted ITO.
• The confidential informant’s motivation for providing information to the police and the benefit they hoped to receive in return.
• The confidential informant received no benefit at the time the information was provided to police and was informed that any benefit would be forthcoming only if the information provided was accurate, and only at the conclusion of the investigation.
• The confidential informant was warned that it was a criminal offence to provide false information to the police.
• Whether the confidential informant had a criminal record, any crimes of dishonesty or outstanding charges. Details, if any, were included.
• Whether the confidential informant suffered from mental illness or addictions to the best of the affiant’s knowledge.

[31] Details that supported and detracted from the confidential informant’s credibility were set out for the issuing justice’s assessment. There was sufficient information in the ITO, as listed above, for the justice to determine that the confidential informant was highly credible.

Was the confidential informant’s information corroborated?

[32] The police investigation established Mr. Janisse’s physical description, make of the car he drove, and licence plate number associated with that car through checks in various police and government databases. Police saw Mr. Janisse driving the car described by the confidential informant on May 29 and 30 and June 3. This investigation corroborated the confidential informant’s information.

[33] In addition, the information provided by the confidential informant was corroborated by the surveillance conducted by the police on June 4, 2019, the details of which were set out in the ITO. On that date, the police observed Mr. Janisse drive the Mazda to Tilbury, Ontario. Once in Tilbury, for approximately 30 minutes, Mr. Janisse drove around the streets in circles, parked his car, walked around the block, and then returned to his car. Officer Wilson indicated in the ITO that he believed, as an experienced drug investigator, that Mr. Janisse was using counter-surveillance techniques, a practice used by drug traffickers.

[34] At approximately 2:00 p.m., Mr. Janisse met with a woman later identified as Danielle Hess, who was driving a Ford truck. They drove in tandem in their own vehicles around several side streets and dead-end streets. Once they stopped on Young Street in Tilbury, Mr. Janisse removed a weighted black duffle bag from his car and placed it in Ms. Hess’s truck. Ms. Hess removed a 2-foot square cardboard box from her truck and gave it to Mr. Janisse, who placed it in his car. The two then parted.

[35] Officer Wilson indicated in the ITO that he believed that Mr. Janisse and Ms. Hess had engaged in a drug transaction. He based this on the counter-surveillance techniques Mr. Janisse used prior to meeting Ms. Hess, the counter-surveillance techniques used by both of them prior to stopping, the brevity of the meeting and the exchange of the weighted duffle bag for a box.

[36] Police continued to surveil Ms. Hess, who drove to Windsor. She was followed to a house at 372 Crawford Avenue, the address of Sebastiano Profetto. Sometime later that day, Ms. Hess left 372 Crawford Avenue in her Ford truck, and drove to the area of Curry Avenue and Wyandotte Street West in Windsor. Before parking on Curry Avenue, she circled the area several times and made several u-turns. Fifteen minutes after she parked on Curry Avenue, a male entered the passenger side of the Ford truck. Ms. Hess drove with the male two blocks away to a Shoppers Drug Mart. The male got out of the truck and walked away.

[37] Officer Wilson noted in the ITO that he believed that Ms. Hess and the male had engaged in a drug transaction. This belief was based on the observations of Ms. Hess engaging in counter-surveillance techniques before parking on Curry Avenue, a male entering the passenger seat of Ms. Hess’s truck, being driven a short distance, and then getting out of the truck and walking away. In his experience as a drug investigator, these observations indicated that a drug-related transaction had occurred.

[38] The police investigation revealed that Ms. Hess had a registered address in Windsor and had been convicted of possession of a schedule IV substance for the purpose of trafficking and possession of a schedule I substance for the purpose of trafficking on March 13, 2012. Police also learned through database checks that Mr. Profetto had a criminal record, including three convictions for possession of a scheduled substance for the purpose of trafficking and four convictions for possession of a scheduled substance. Ministry of Transportation records revealed that Mr. Janisse’s address was 565 Oak Street, Windsor. All of this information was included in the ITO.

[39] Mr. Lafontaine described the observations made by the police on June 4, 2019 as innocuous, and incapable of corroborating the information provided by the confidential informant. In his submission, the June 4 observations added nothing to the application that was denied on June 3, 2019.

[40] I do not agree that the observations were incapable of corroborating the confidential informant’s information. I accept that, standing alone, observations of a person driving around an area in circles, parking their car, and then walking around the block before returning to the car, could indicate that the person is lost. However, those observations did not stand alone. They were made in the context of other observations, including the observation of Mr. Janisse and Ms. Hess travelling together in their own vehicles around numerous side and dead-end streets before stopping and exchanging a box for a bag, and the further observation of Ms. Hess circling an area numerous times in Windsor before stopping and waiting for a man to get into her truck, driving two blocks and letting the man out.

[41] The authorizing justice was entitled to place weight on the description of what Officer Wilson described as counter-surveillance techniques employed by Mr. Janisse and Ms. Hess, based on the officer’s training and experience outlined in the ITO. Officer Wilson was careful to separate the observations made from his opinion in the ITO by the use of different fonts.

[42] I do not accept Mr. Lafontaine’s submission that the June 4 observations added nothing to the June 3 application that was denied by Justice Silverstein. Prior to June 3, police had not observed Mr. Janisse engaged in behaviour consistent with drug trafficking. On June 4, they made direct observations of him engaging in what they suspected to be drug trafficking. These observations corroborated the confidential informant’s information.

[43] It is also important to note that the June 3 tracking warrant application included an application for a general warrant, which may only issue when the justice is satisfied that there are reasonable grounds to believe that an offence has been or will be committed. This is a higher standard than reasonable grounds to suspect that an offence has been or will be committed, which is required for a tracking warrant. Justice Silverstein was not satisfied that there were reasonable grounds to believe that an offence had been or would be committed. He did not address the lower standard of reasonable grounds to suspect.

Conclusion on the Debot “3 C’s”

[44] The information provided by the confidential informant was reasonably compelling, highly credible and materially corroborated by police investigation.

Conclusion

[45] I am satisfied that there was a sufficient basis in the ITO before the issuing justice to have concluded that there were reasonable grounds to suspect that Mr. Janisse was or would be trafficking in drugs and that tracking the location or movement of his vehicle would assist in the investigation. I therefore find that the tracking warrant was validly issued.

[46] I did not understood Mr. Lafontaine to argue that the warrants and orders issued after the tracking warrant were invalid for any reason other than what he argued to be the improper issuance of the tracking warrant. I have therefore not addressed the validity of the subsequent authorizations.

[47] For the reasons set out above, the application to exclude evidence from Mr. Janisse’s trial is dismissed.

Corrick J.

Released: October 29, 2021

COURT FILE NO.: CR-21-90000-173

DATE: 2021-10-29

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – CHRISTOPHER JANISSE

RULING ON APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) CHARTER OF RIGHTS

Corrick J.

Released: October 29, 2021