COURT FILE NO.: CR-21-0000822-0000
DATE: 2022 06 15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: )
KERON FINDLEY )
Applicant )
- and - )
HER MAJESTY THE QUEEN )
Respondent )
Daisy Bygrave, for the accused
Robert Tremblay, for the Crown
) HEARD: May 30, 31, June 1, 2022
REASONS ON APPLICATION MADE PURSUANT TO SECTIONS 8, 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS
MANDHANE J.
OVERVIEW
[1] The accused brings an application pursuant to s. 8 and 24(2) of the Charter of Rights and Freedoms to quash a search warrant (“Warrant”) executed by police on September 21, 2019, at 433 Hansen Road North, Brampton (“the Residence”). The Warrant allowed the police to search the residence for firearms, ammunition, and related documents.
[2] In the Information to Obtain the Authorization (“ITO”) sworn by Detective Constable Sarah Angevine (“the affiant”) on September 21, 2019, in support of the existence of reasonable and probable grounds, the affiant relied on the following information:
a) A trip provided to Detective Constable Eric Grant (“the sub-affiant”) by a confidential informant (“CI”) registered with Peel Regional Police Service (“the Tip”);
b) A police occurrence report dated June 16, 2019, that stated that the accused and his girlfriend had been living at the Residence for nearly two years;
c) Surveillance that placed the accused in the garage of the Residence on both September 16 and 21, 2019; and
d) The fact that the accused did not possess a firearms license.
[3] The accused was present during the search and, based on the items obtained, he was arrested and charged with knowing possession of an unlicensed and unregistered handgun, knowing possession, and possession of cocaine for the purpose of trafficking.
[4] The Defence says that the Search Warrant should be quashed because the issuing justice could not have found that there were reasonable and probable grounds to believe that firearms and ammunition would be found in the Residence based on the ITO.
[5] The Crown says the search was pursuant to a warrant and was reasonable.
[6] As the assigned case management judge, I heard the Defence application over three days.
ISSUES
[7] The parties agree that the only issue before me is whether the authorizing justice had sufficient, reliable information before him such that he could have found that there were reasonable and probable grounds that a firearms and ammunition would be found in the residence.
SHORT CONCLUSION
[8] The ITO provided sufficient reliable information such that the issuing justice could find that there were reasonable and probable grounds, such that a warrant could issue in the circumstances. There was no breach of s. 8. The search was reasonable, and the evidence obtained from the search is admissible at trial.
PROCEDURAL BACKGROUND
[9] As a preliminary matter, the Defence asked leave to cross examine the affiant and sub-affiant, and for a judicial summary of the redacted information in the ITO.
Motion to cross-examine the affiant and sub-affiant
[10] With the agreement of counsel, I dealt with the motion for leave to cross- examine first.
[11] After hearing from counsel, and for more fulsome oral reasons given on May 30, 2022, I refused to grant Defence counsel leave to examine the sub- affiant on the CI’s description of the gun to police. The Crown was concerned that such an examination might reveal the CI’s identity insofar as the accused may know which gun or replica he carried during particular interactions, at particular locations, or on particular dates. Balancing the relevance and materiality of the proposed cross-examination, against the need to protect informants and the concern for the prolixity of proceedings, I refused the defence motion to cross-examine the handler: R. v Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 33-38.
[12] I did, however, grant the Defence leave to question the affiant on the following two areas:
a. The foundation of the affiant’s opinion that the accused is “entrenched in a drug trafficking lifestyle and will utilize this firearm to instill fear into his customers, the general public and will carry it for his own personal protection and the protection of his drugs”; and
b. The timing and sequence of events observed during the police surveillance on September 21, 2019.
[13] In summary, the affiant testified that the foundation for her opinion came from the CI information, combined with her professional training and experience. She stated that the timing and sequence of events on the night of the surveillance was relayed to her verbally by the surveillance officer based on his contemporaneous notes.
Judicial summary of the redacted information in the ITO
[14] The Crown conceded that the search warrant was not supportable without the excised CI information, and brought an application pursuant to Step 6 of Garafoli analysis to have me consider the excised material contained in the ITO:
R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at para. 103; R. v. Crevier, [2015] O.J. No.
5109 (C.A.) at paras. 24-25, 32.
[15] The unredacted ITO was marked as a sealed exhibit of the voir dire. The Crown prepared a summary of the excised information and provided the same to the defence and the Court.
[16] After hearing from the Crown in-camera, I prepared a more fulsome judicial summary for the defence. The judicial summary included the following information that was not apparent from the redacted ITO:
Within 45 days of the warrant execution, the CI #1 was present, on two occasions, at the garage attached to 433 Hansen Road North, Brampton, during which he/she observed Findley sell cocaine while in possession of a firearm. Details known to CI #1 of weight of cocaine sold and description of firearm observed is disclosed including its colour and the fact that it was a handgun.
CI #1 has provided information in the past on 4 occasions that led to the seizure of schedule 1 substances each time. The information also led to two arrests and the execution of two search warrants.
[17] In addition to the information provided in the Crown summary, I disclosed the fact that the CI had a criminal record, though I did not reveal the specific charges and/or convictions as I was concerned they might reveal the CI’s identity.
[18] Overall, with the information included in the judicial summary, I was satisfied that the accused was sufficiently aware of the nature of the excised material to challenge it in argument or with evidence: Garafoli, supra. The Crown was content to continue with the prosecution based on the judicial summary, and it was entered as an exhibit on the voir dire.
[19] Defence counsel was then provided with an opportunity to make submissions on the summary and/or to seek leave to re-examine the affiant. Defence counsel did neither, and indicated that she was content to proceed based on the judicial summary.
[20] Since neither the Crown nor the Defence brought a motion to amplify or excise any information in the ITO, as the next step in the voir dire, I heard submissions from the Defence and Crown on the merits of the s. 8 application. Both parties relied on their written submissions in relation to the s. 24(2) analysis.
ANALYSIS
[21] The Defence argues that the reliable information contained in the ITO failed to provide reasonable grounds to believe that evidence of an offence would be found in the search of the Residence, and that the s. 487 warrant should not have been granted by the issuing justice.
[22] The burden of establishing that the ITO is insufficient rests on the accused and must be proven on a balance of probabilities: R. v. Lising, at para 30.
What is the proper standard of review?
[23] The Garofoli analysis starts from the presumption that the warrant is valid: at paras. 67-68. This is a rebuttable presumption based on a contextual analysis of the record.
[24] My narrow review power flows directly from the presumptive validity of the enabling authorization. The question before me is not whether I would have issued the warrant based on the ITO, but whether the justice was presented with sufficient credible and reliable evidence, to permit a finding that the statutory prerequisites were established: R. v. Sadikov, 2014 ONCA 72 at paras. 83-86.
[25] The statutory standard set out in section 487 of the Criminal Code— reasonable grounds to believe—does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly based probability: Sadikov, at para 81.
Was the Information provided by the CI sufficiently reliable such that it was properly included in the ITO?
[26] Where the reasonable grounds justifying a search originate, at least in part, from information provided by a confidential informant, the tip must reliable insofar as it is "compelling, credible and substantially corroborated by independent police investigation." R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at para 60.
[27] Here, the Defence argues that the Tip was not sufficiently corroborated to be properly considered reliable.
Was the Tip compelling?
[28] The Defence conceded in oral argument that the Tip was compelling. The CI was able to name the accused, describe his physical attributes, identify him in a photo, and provide his address. Within 45 days of the warrant execution, the CI was present, on two occasions, at the garage attached to the Residence during which they observed the accused sell cocaine while in possession of a firearm. The CI provided the sub-affiant with details regarding the weight of cocaine sold and described the colour of the handgun.
[29] The Crown says that the compelling nature of the Tip is the central factor in this case and supports the overall reliability of the ITO. Having reviewed the unexcised ITO, I agree. The Tip is highly detailed, connects the accused to the Residence, and is based on recent, firsthand observation.
Was the Tip credible?
[30] Overall, I am convinced that the CI was a proven source of reliable information who was credible. The CI had many indicia of credibility noted in Crevier, at para. 83, for example:
• The CI provided recent, detailed, first-hand information that matched the accused and target location,
• The CI was registered with the Peel Regional Police Service.
• The CI was involved in the criminal subculture for a lengthy prior of time and had strong knowledge of street drugs and firearms,
• The CI has never been charged with perjury or obstruct offences,
• The CI never provided false or exaggerated information, and
• The CI had provided information on four past occasions that led to the seizure of Schedule 1 substances, and which led to the execution of two search warrants, and two arrests.
[31] One factor that weighs against the CI’s credibility is their criminal record. However, I note that the issuing justice had the full details of the record before him and that his record did not include crimes of dishonesty or obstruct justice. The other factor that cuts against the CI’s credibility is their motivation, namely “consideration.” Again, however, the CI was also cautioned by the sub-affiant that they would not receive any consideration unless the information was reliable.
[32] Overall, I agree with the Crown that the CI was a highly credible source of information.
Was the tip corroborated?
[33] The Defence’s main argument against reliability of the Tip was that it was not sufficiently corroborated because the police surveillance did not establish a nexus between the Applicant and the alleged criminal activity, nor between the accused and the Residence.
[34] The Crown concedes that there was no corroboration of criminal activity, whether in relation to the firearm or drug trafficking. Everything that the police observed during the two days of surveillance was legal. The surveillance at the residence did not reveal any exchange of drugs, and none of the people who attended at the Residence during the periods of surveillance were stopped, searched, or arrested. In cross examination, the affiant was clear that she did not rely on the police surveillance to support her opinion that the accused was entrenched in a drug trafficking lifestyle.
[35] I find that the link to criminal activity was not corroborated. At the same time, as a practical matter, and for obvious reasons, I accept the police will rarely be able to corroborate that the accused is in actual possession of a gun prior to the search: see R v. Rocha, 2012 ONCA 707 at para. 22; R v Kebede, 2018 ONSC 6304 at para. 37. In handgun cases, judges may be required to consider whether the CI’s tip is sufficiently compelling to make up for weaknesses in corroboration: Kebede, at para. 37.
[36] Turning now to the nature of the corroboration in this case, The Crown argues that the police occurrence report created about three months before execution of the Warrant corroborated the CI's information about the accused living at the Residence. He argues that the surveillance also confirmed that the
accused resided at the Residence. The accused was observed in the garage on two occasions. On September 16, 2019, police observed him standing in the open garage of the Residence and, on September 21st, he was identified as being in the garage with two other Black males at 8:51 p.m.
[37] The affiant testified that it was only after the surveillance officers identified the accused by sight that she felt that she had sufficient information in the ITO to support the existence of reasonable and probable grounds.
[38] Overall, the CI’s tip was highly compelling and credible, and more than made up for the deficiencies in corroboration. The issuing justice was entitled to rely on the ITO in its entirety, including the information obtained from the CI.
Did the Search Warrant on its face, disclose reasonable and probable grounds?
[39] In support of the existence of reasonable and probable grounds, the affiant relied on the following information: the Tip, the police occurrence report from June 2019, and the fact that the accused did not possess any firearms licenses. (The affiant also noted the details of the accused’s youth record but specifically stated that she did not rely on it for the purposes of obtaining the authorization, including it only in the interests of being “full, frank and fair.”)
[40] Based on the unredacted ITO, I find that the issuing justice could have found reasonable and probable grounds to support issuance of the Search Warrant. Given my findings above regarding the CI information, I find that the Justice was entitled to rely on the compelling and credible nature of the CI information to find that there were reasonable and probable grounds that the
accused was involved in criminal activity at the Residence, and that he lived there.
CONCLUSION
[41] The search was reasonable and there was no breach of s. 8
Mandhane J.
Released: 2022 06 15
COURT FILE NO.: CR-21-0000822-0000
DATE: 2022 06 15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
KERON FINDLEY
Applicant
- and –
HER MAJESTY THE QUEEN
Respondent
REASONS ON APPLICATION MADE PURSUANT TO SECTIONS 8, 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS
Mandhane J.
Released: 2022 06 15