COURT FILE NO.: CR-21-044 (Owen Sound) DATE: 20220222 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen -and- Jasper Dieter
E. Barefoot, for the Crown A. Shahabi, for Mr. Dieter
Heard: February 17, 2022 Before: Justice R. Chown
Ruling re Quashing Search Warrant
[1] The accused Jasper Dieter brings this application to quash the search warrant which authorized the search of his residence in Allenford (the “subject residence”) on February 14, 2020. Mr. Dieter argues that the Information to Obtain (“ITO”) did not contain evidence on which the justice of the peace, acting judicially and independently, could determine that there were grounds to justify the issuance of the search warrant. The resulting search led to the discovery of evidence which in turn led to charges against Mr. Dieter for possession of various controlled substances for the purpose of trafficking and other charges.
[2] Ms. Shahabi acknowledges that her client bears the burden of demonstrating, on a balance of probabilities, that the ITO was insufficient and that the warrant could not have been issued: Quebec (Attorney General) v. Laroche, 2002 SCC 72, at para. 68; R. v. Sadikov, 2014 ONCA 72, at para. 35. She further acknowledges that the reviewing court should not substitute its views for that of the authorizing court, but rather should determine whether, based on the record which was before the authorizing court, as amplified on review if appropriate, there was sufficient basis for issuing the warrant: Re Times Square Book Store v. R. (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at p. 514; R. v. Turcotte (1987), 39 C.C.C. (3d) 193 at p. 204; R. v. Morelli, 2010 SCC 8, at para. 40; R. v. Araujo, 2000 SCC 65, at para. 54.
[3] Mr. Dieter’s application initially sought to cross examine the affiant on the ITO, Det. Const. Thalen. However, upon receipt of the Crown’s responding record, including a summary of the redacted portions of the ITO, he did not pursue this request.
[4] Because the ITO was based in part on information from confidential informants, the procedure mandated by R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1461, was followed. This decision relates to stage 5 of Garofoli. As I am dismissing the motion, a stage 6 hearing is not necessary.
The Redacted Contents of the ITO
[5] In this case, stage 5 of Garofoli involved reviewing the redacted ITO and the Crown’s “Stinchcombe Summary of ITO” which describes what is in the redactions. Ms. Shahabi was content that the summary appeared to adequately describe the nature of the redactions. I reviewed the original ITO and the summary and was satisfied that the redactions were adequately described.
Mr. Dieter’s Criminal Record and Police Occurrences
[6] The ITO describes Mr. Dieter’s criminal record. It includes a 2008 assault causing bodily harm, a 2014 fail to comply with undertaking, and a 2014 assault.
[7] The ITO indicates that Mr. Dieter had been involved in 57 police occurrences including seven drug related occurrences. Except as described below, no details such as the date or the nature of the occurrences is provided.
[8] The ITO describes that in one occurrence dated June 30, 2015, Mr. Dieter was involved in a drug trafficking occurrence in Mississauga, Ontario. No other details are provided.
Mr. Dieter’s Daughter’s 2016 Tip
[9] The ITO then describes a July 4, 2016 occurrence report. On that date, Mr. Dieter’s daughter attended the Owen Sound police station and reported that there is a drug trafficking problem going on in her building. Details from the occurrence report are provided as follows:
Dispatch had advised the complainant wanted to speak to police regarding drug trafficking going on in her building. Police sat down with the complainant who reported that she was actually wanting to report that her father, Jasper DIETER was selling cocaine out of [address of his residence at the time is omitted]. The complainant describes her father’s apartment as the blue unit beside the house, above the garage. The complainant use to reside with her father until today’s date when she was kicked out. She is currently of no fixed address. The complainant reported to police that her father sells cocaine daily to people who show up by car. Her father doesn’t work so he is always there, she believes he makes $2000 a day selling drugs. Reportedly the suspect keeps the cocaine and approximately $20,000 cash in a safe in the closet. The complainant further reported that her father also has other illegal drugs in the residence such as MDMA which she observed on the table on the morning of July 3rd. The complainant stated she is willing to work with police and provided her boyfriend’s cell phone number in case the drug unit needs to contact her. The drug unit was advised. Report filed for information purposes.
[10] The Crown acknowledges that this was very dated information by February of 2020 when the search warrant was obtained. Mr. Dieter no longer resided at the same address. The ITO does not explain any steps taken as a result of this information or, if none, why. I was advised during the hearing that Mr. Dieter’s daughter is now deceased.
2015, 2016 and 2017 Crime Stoppers Tips
[11] The Stinchcombe summary of the redacted portions of the ITO indicates that four redacted paragraphs refer to 2015, 2016 and 2017 Crime Stoppers tips. However, there is no hint in the redacted ITO, as supplemented by the Stinchcombe summary, that these relate to drug activity or that they even relate to Mr. Dieter. These cannot form part of the analysis.
2019 Crime Stoppers Tip
[12] The affiant explains that in March 2019 he reviewed a Crime Stoppers tip which indicated that Mr. Dieter was trafficking cocaine from his residence. His residence was said to be in Allenford. The affiant checked Ministry of Transportation records and found that Mr. Dieter’s indicated address was in Owen Sound.
Surveillance and Unsubstantiated Information Regarding an Associate
[13] The affiant then explains that he did surveillance in March 2019. The only significant result of the surveillance was that he observed a vehicle owned by Anthony Howell parked at Mr. Dieter’s Owen Sound residence and then later at the subject residence. The affiant explains that he received information from Det. Const. Downs that Mr. Howell was a known associate of Mr. Dieter and “is known to ‘mule’ drugs” for Mr. Dieter. The basis for Det. Const. Downs’ information is not described.
[14] To that point, the surveillance did not generate any evidence that Mr. Dieter attended the subject residence.
Further Surveillance
[15] The affiant then explains that in October and November of 2019 and on January of 14, 2020 he conducted surveillance and “drive-bys” of the subject residence and observed vehicles registered to Mr. Dieter at the subject residence on multiple occasions. It appears that Mr. Howell was there on three occasions and Mr. Dieter’s mother, Wendy Earnest, was there on one occasion. The affiant refers to the subject residence as Mr. Dieter’s residence, although it is not indicated whether MTO records had been changed to reflect that he moved from Owen Sound to Allenford. However, it appears that the affiant by then believed that the subject residence was Mr. Dieter’s residence. No evidence to the contrary has been provided, and no suggestion to the contrary has been made.
Confidential Informant #1
[16] In October 2019, Det. Const. Dlouhy of the O.P.P. provided information to the affiant that he obtained from a confidential information (CI #1) as follows:
- Jasper DIETER is trafficking cocaine from [the subject residence]. [The address was provided in the redacted ITO but is omitted from these reasons.]
- DIETER lives alone
- DIETER does not have a job
- DIETER uses a lot of cocaine
- DIETER’s friend [name redacted] visits his residence and they [information regarding their activity redacted]
- DIETER picks up his cocaine in bulk [details regarding the trafficking operation redacted]
- DIETER sells his cocaine in dime bags
- DIETER’s mother used to drive for Wendy’s Taxi Service
- DIETER’s mother sells cocaine for him
- DIETER’s mother uses methamphetamine and sells methamphetamine
- DIETER has a male friend who is tall and skinny and operates “ASAP Delivery” and sells cocaine for him
- CHS #1 observed cocaine at DIETER’s residence on [details regarding the observations made at Dieter’s residence and the particular month of 2019 are redacted] 2019
- DIETER keeps his cocaine in his residence [details regarding the location of where Dieter kept his supply of cocaine redacted]
[17] I infer that “CHS #1” is the same person as CI #1.
[18] CI #1 was an untested confidential informant who did not want to be identified due to fear of retaliation from the people that are involved in the illegal activities described.
Confidential Informant #2
[19] In January of 2020, Det. Const. Dudley of the O.P.P. provided information to the affiant that he obtained from a confidential informant (CI #2). CI #2 advised that Mr. Dieter was still supplying cocaine from his residence in Allenford. The Stinchcombe summary indicates that CI #2 provided details regarding who is supplied with cocaine, what is being supplied, and the CI’s first- or second- hand observations of cocaine.
[20] The ITO indicates that CI #2 “has not been convicted with any offences related to false statements such as perjury, public mischief or similar offences.” Using the same logic as Paciocco J. (as he then was) in R. v. Floyd, 2012 ONCJ 417, at para. 53, CI #2 probably has a criminal record but not for perjury, public mischief or similar offences. This is relevant to his credibility. CI #2 was, however, a proven source, having previously provided information which led to seizures of controlled substances and other information about trafficking which has been corroborated by other sources. CI #2 has never provided information that was found to be false or suspected to be false or misleading.
[21] The materials do not explicitly state that CI #1 and CI #2 are different people, but the affiant indicates he knows who CI #1 is and does not indicate he knows CI #2. He provides considerable background information about CI #2. CI #1 and CI #2 have different police “handlers.” It is appropriate to infer they are not the same person, although it would have been better if this was explicitly stated.
Additional Surveillance
[22] The affiant conducted further surveillance and drive-bys in January and February of 2020. He saw Mr. Dieter’s vehicle there on several occasions and saw Mr. Dieter there on one occasion. He saw Mr. Howell’s vehicle there on several occasions and saw Mr. Howell entering the residence on two occasions.
2020 Crime Stoppers Tip
[23] The affiant received a further Crime Stoppers tip in January of 2020 which indicated that Mr. Dieter supplies cocaine and lives in Allenford. This partially redacted tip was uncorroborated in the unredacted elements of the ITO.
[24] There is no way of knowing from the ITO how many individual tipsters provided the multiple Crime Stoppers tips. There may have been some overlap, or they may all have been the same person.
Defence Argument
[25] On behalf of Mr. Dieter, Ms. Shahabi argued that:
- Mr. Dieter has no recent convictions for drug related offences.
- The information of Det. Const. Downs that Mr. Howell was known to be Mr. Dieter’s “mule” was nothing but a bald, conclusory statement without any information provided to corroborate it.
- Despite extensive surveillance, only two individuals, Mr. Howell and Mr. Dieter’s mother, are observed at the subject residence. There are no customers showing up at the residence as the daughter’s information would suggest or, less directly, the tipsters’ and confidential informants’ information would suggest. Mr. Howell’s and Ms. Earnest’s visits do not appear to have been short visits intended merely for a pickup of drugs. They are not observed carrying anything in or out of the residence. The appropriate conclusion from the surveillance is that Mr. Dieter’s mother and friend visit his residence occasionally. Mr. Dieter’s mother is in her seventies and on this basis is unlikely to be involved in drug trafficking. The visits of Mr. Dieter’s mother and friend should not be seen as suspicious.
- There is no information regarding what happened as a result of the daughter’s information or the other dated information. An inference should be drawn that the daughter’s information could not be corroborated, and it should be disregarded as likely inaccurate.
- CI #1 was an untested informant and there was no information provided to the justice of the peace to establish the reliability or credibility of CI #1.
- The police did not corroborate the information provided by CI #1 beyond innocent, commonplace, or neutral details that would have been known to anyone. Evidence from an untested informer cannot, standing alone, provide sufficient grounds for a search where the police do not conduct an independent inquiry to corroborate the tip, beyond those details that describe innocent or commonplace details.
- CI #1 was said to be motivated by “changing their lifestyle,” a vague statement which seems inconsistent with the assertion that he or she had no criminal record.
- Much of the information is dated.
- There is no information to indicate that Mr. Howell or Mr. Dieter’s mother were delivering anything for Mr. Dieter. There was no apparent effort to follow either of them after they left Mr. Dieter’s residence to see where they went.
- Heightened care is required before granting a search warrant for someone’s residence.
- The totality of the evidence in the ITO is not adequately credible, compelling, and corroborated to support a search warrant.
Legal Framework
[26] The police sought the search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Under that section, the standard of proof that must be met for the issuance of a search warrant is “reasonable grounds to believe.” The Supreme Court of Canada has held that “reasonable grounds to believe” is identical to the common law requirement of “strong reason to believe” or the requirement in the American Bill of Rights of “probable cause”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167. The Supreme Court in Hunter held, at p. 167: “The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”
[27] Mere suspicion is not enough: R. v. Campbell, 2010 ONCA 588, at para.53, but proof on a balance of probabilities is not required: R. v. Jacobson, at para. 22; Sadikov, at para. 81; R. v. Herta, 2018 ONCA 927, at para. 20.
[28] The Court of Appeal in Sadikov held, at para. 83 to 84, that the reviewing judge’s task is limited:
Warrant review begins from a premise of presumed validity: Wilson, 2011 BCCA 252, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it….
The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.
[29] “[T]he question is whether there are reasonable grounds to believe – constitutionally defined as credibly-based probability – that there is evidence respecting the commission of an offence in the location to be searched”: Herta, at para. 20.
[30] The facts are to be assessed on a practical, non-technical, holistic, common-sense basis: R. v. Wilson, 2011 BCCA 252, at para. 52; Herta, at para. 21.
[31] Here, the search was fruitful in that cocaine, heroin, LSD, oxycodone, cash, a digital scale, a suspected debt list, a firearm, and ammunition were found. However, it would be an error to consider the success of the search as part of the review. “The results of the search cannot, ex post facto, provide evidence of reliability of the information”: Garofoli, at p. 1457. See also R. v. Greffe, [1990] 1 S.C.R. 755, at p. 776, 790 and 798.
Application
Conclusory Statement
[32] I agree with Ms. Shahabi that Det. Const. Downs’ information that Mr. Howell was a “mule” for Mr. Dieter was nothing more than a bald, conclusory statement that, without more, could not be given weight: Greffe, at p. 791 to 792. This is especially so because the affiant provided no explanation as to why additional detail was omitted. Det. Const. Downs would have been in a position to provide some information to support his assertion, or an explanation as to why he could not.
Surveillance Does Not Corroborate the CI Information
[33] I agree with Ms. Shahabi that, to some extent, the considerable surveillance contradicts what one might have expected, i.e., the affiant did not see a steady stream of drug-purchasing customers coming to and going from the subject residence.
Dated Information
[34] The Crown acknowledges that Mr. Dieter’s criminal record is not related to drug trafficking and did materially add to the weight of the evidence supporting the warrant.
[35] I agree with Ms. Shahabi that the dated information is of little effect. For instance, I agree that the undetailed police occurrences mentioned in the ITO are of no material weight. Without information as to what the occurrences involved or Mr. Dieter’s role in them, they are not useful evidence.
[36] I also agree that the daughter’s information that there were drugs to be found in Mr. Dieter’s 2016 residence does almost nothing to establish that drugs would be found in his 2020 residence. The daughter’s information was, however, highly specific information from someone who said she lived with him at the time. Her motivation for reporting that her father was trafficking drugs seems clear enough – animus due to being kicked out of his apartment. That does not necessarily make the report less credible. The daughter’s information is compelling evidence that Mr. Dieter was involved in drug trafficking in 2016. This information does provide some, albeit limited, corroboration.
[37] In support of this view, I refer to the following passage of Wilson J. in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1169 (she was speaking for the full court on this issue):
I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress an otherwise insubstantial case for searching a suspect. At the same time I find it difficult to accept the proposition that the past activities of a suspect are irrelevant. Indeed, as Martin J.A. points out at pp. 220-21 of his judgment:
Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on the ground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs its probative value.
These policy reasons are obviously not as cogent at the investigatory stage where the liberty of the subject is not directly at stake.
[38] I also note that in R. v. MacDonald, 2012 ONCA 244, at para. 24, Laskin J.A. noted, “the cogency of the criminal record depends on its similarity to the criminal activity alleged by the tipster and the age of the record.” The daughter’s information is by no means equivalent to a criminal conviction, but it is a compelling indication that Mr. Dieter had a history of trafficking drugs.
Unpursued Avenues
[39] I only partially agree with Ms. Shahabi that other avenues of investigation to corroborate the information were appropriate but not pursued. For instance, Mr. Howell could have been followed. However, this may have risked exposure of the investigation. Without more, it would be wrong to conclude that not following Mr. Howell to see if he made deliveries was a significant failure.
[40] I do agree that it would have been better if the ITO said whether any action was taken as a result of the 2015, 2016 and 2017 Crime Stoppers tips or the daughter’s information, and if not, why not.
Corroboration of Neutral Details
[41] As indicated, Ms. Shahabi argues that the police did not corroborate the information provided by CI #1 beyond innocent, commonplace, or neutral details that would have been known to anyone.
[42] Ms. Barefoot argues that the fact that the confidential informants and the 2019 and 2020 Crime Stoppers tipsters knew Mr. Dieter’s first and last name and his residence address or location should not be dismissed as commonplace. She argues that these factors provide an element of reliability. She points to R. v. Plant, [1993] 3 S.C.R. 281, at p. 298. The informant in that case had said marihuana was being cultivated at “a ‘cute house’ located within the 2600 block of 26th Street near a house with many windows.” From this the police had identified the house. The tip and hydro records which showed elevated use of electricity at the residence relative to neighbouring houses was sufficient evidence to provide reasonable grounds for the search warrant. Sopinka J. held:
The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant’s residence and corroborate the report of the informant. I conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant.
[43] R. v. Brown, 2021 ONCA 119, at para. 52 to 55, is also instructive on this point. There, the facts confirmed by the police consisted of the colour and model of the accused’s vehicle, a description of the accused’s appearance, and the fact that the appellant “hung out” in a specific area of Toronto. Strathy C.J.O. held that the “corroborative effect of some of this information is minimal when viewed in isolation,” but because it was all corroborated, taken together it considerable force.
[44] In R. v. Dhillon, 2016 ONCA 308, at para. 40, Tulloch J.A. held:
The trial judge found little corroborative value in the police investigation. Again, I disagree. Police confirmed the accuracy of specific information during their investigation. This included: the respondent's name, though not his nickname; the colour, make, and age of the respondent's vehicle; the respondent's ethnicity; the respondent's address; his approximate age; and that he had been arrested but not convicted in relation to the possession of stolen property. Police confirmation of these details, as in R. v. Caissey, 2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25, aff'd 2008 SCC 65, [2008] 3 S.C.R. 451, tends to substantiate the reliability of the informants' information.
Not only was there corroboration of personal characteristics, there was some indication that the criminal activity alleged was indeed occurring. As this court stated in R. v. Lewis (1998), 38 O.R. (3d) 540, at pp. 547-548, there is no need to confirm the very criminality of the information given by the tipster, but there must be more than corroboration of innocent or commonplace conduct when the police are relying on an untested informant.
[45] Finally, MacDonald, at para. 20 to 22 is helpful. The tipster had told police that the accused had flashed a gun. The tipster provided detailed information about the accused including his birthday, appearance, tattoo, alias, surety’s area of residence, where the accused “hung out”, and the fact that the accused drove a rental vehicle. These features were corroborated by the police, as was the accused’s criminal history for possession of firearms. Laskin J.A. noted, at para. 19, that “although a good deal of the information was biographical, and thus likely widely known, it was nonetheless very detailed.” He described the information given by the tipster as “reasonably compelling.” He held, at para. 24, “Overall, the appellant’s record together with the confirmation of the detailed biographical information given by the tipster reasonably support the trial judge’s conclusion that the authorizing justice could have granted the authorization.”
The Totality of the Circumstances
[46] As indicated, I agree with much of Ms. Shahabi’s argument. However, I do not agree with her that the totality of the evidence in the ITO is not adequately credible, compelling, and corroborated.
[47] Her criticisms of the ITO are relatively minor. It will almost always be possible to find things to criticize. Strengths in one area can make up for weaknesses in another. Again, I refer to Wilson J.’s judgment in Debot, where she said at p. 1168:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[48] See also R. v. Rocha, 2012 ONCA 707, at para. 16 and MacDonald, at para. 6.
[49] In this case, some of the information in the ITO was particularly compelling in its detail, such as the information from CI #1. The surveillance tends to confirm CI #1’s information that Mr. Dieter did in fact live at the subject residence, he lived alone, and he did not have a job. There is no confirmation that Mr. Dieter’s mother used to drive for Wendy’s Taxi Service although her first name is Wendy. Mr. Howell’s attendances at the subject residence do tend to confirm that Mr. Dieter “has male friend who is tall and skinny.” This source appears to have made personal observation of cocaine at the subject residence.
[50] CI #2 is not compelling in terms of its detail but was from a proven source of intelligence about drug traffickers.
[51] These two confidential informants do not appear to be the same person for the reasons already discussed. And while it is possible that the Crime Stoppers tipsters and the confidential informants were all one person, based on the way the information was presented and the different details in the information, that seems unlikely. If they were the same person, that person was persistent. The fact that the tips came in over an extended period adds to their weight.
[52] The 2019 and 2020 Crime Stoppers tips might not have been sufficient to act upon on their own, but they do provide a significant measure of support. The 2020 Crime Stoppers tip does provide information that appears consistent with the type of vehicles Mr. Dieter and Mr. Howell drive.
[53] There appears to have been several sources of information that Mr. Dieter was trafficking drugs from the subject residence. That is a compelling circumstance which does not often feature in the jurisprudence.
[54] As indicated, the daughter’s information, although dated, adds corroborative information to suggest Mr. Dieter had a history of trafficking drugs.
[55] In my view, the totality of the circumstances provided the justice of the peace with reasonable grounds to believe that drugs and evidence associated with trafficking drugs would be found at the subject residence.
Disposition
[56] In result, based solely on the redacted ITO and the Stinchcombe summary, I find that the issuing justice of the peace had a strong basis upon which to issue the warrant. The application is dismissed.
Chown J. Released: February 22, 2022