COURT FILE NO.: CR-21-56 Kingston
DATE: 20220727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Sean Michael Cartmer
Applicant
Joseph Dart, Agent for the Federal Crown and Ryan Makasare, Counsel for the Provincial Crown
Michael Spratt, counsel for the Applicant
HEARD: June 27, 2022
Ruling on Application TO EXCLUDE EVIDENCE pursuant to s. 8 and 24(2).
Bramwell, j.
Introduction
[1] The Applicant is charged with the following offences:
a. Possession of fentanyl for the purpose of trafficking;
b. Possession of a prohibited firearm without a license;
c. Possession of property obtained by crime under $5000;
d. Breach of probation;
e. Breach of weapons prohibition (four counts);
f. Carry concealed firearm;
g. Careless carriage of firearm; and
h. Possession of loaded prohibited firearm.
[2] The Applicant is jointly charged with Megan Smiley on the possession of fentanyl for the purpose of trafficking charge. Ms. Smiley did not file materials or join in this Application. She did not attend on the Application date though she was properly remanded to that date. A bench warrant was therefore issued.
[3] Kingston Police executed a s. 487 search warrant on room 124 at 1454 Princess Street, Kingston, which is the Maple Crest Inn, on August 7, 2020. Investigators believed that the Applicant was in possession of a firearm and drugs at that location.
[4] At the time of the execution of the warrant, the Applicant tried to flee the area by running across the parking lot. He was caught and arrested. While attempting to flee, the Applicant dropped onto the ground just outside the hotel room, a .22 calibre pistol that he had pulled from the waistband of his pants. One round of ammunition was found in the chamber. Additional rounds were found in the magazine. Fentanyl was found in two places on the Applicant’s body.
[5] A cell phone with a label on it reading “Biggie” was found outside the room that the Applicant fled.
[6] The search of the hotel room yielded a bullet proof vest, a BB gun, gun parts, a weigh scale with what appeared to be traces of fentanyl on it, two containers with blue fentanyl in them, cutting agent, a dime bag containing unknown white pills, empty unused dime bags and a hatchet.
[7] The Applicant argues that the search constituted a violation of his s. 8 Charter rights and seeks to exclude all evidence seized, pursuant to s. 24(2) of the Charter. He argues that there were not reasonable and probable grounds upon which the issuing justice could have issued the warrant.
[8] The Crown’s position is that there were sufficient grounds upon which the issuing justice could have issued the warrant but that if I find that there has been a breach of s. 8, the evidence should not be excluded pursuant to s. 24(2).
[9] For the reasons that follow, I find that the Applicant has not met the onus upon him to establish a breach of his s. 8 Charter rights. It is therefore unnecessary to engage in the s. 24(2) analysis.
The Information to Obtain the Search Warrant
The background of the Affiant and the investigation
[10] Detective Constable Joshua Conner of the Kingston Police was the affiant (“the Affiant”) who prepared the information to obtain the search warrant (“ITO”) for the August 7, 2020 hotel room search.
[11] In the ITO, the Affiant relied on information from an anonymous caller and two confidential informants (“Source A” and “Source B”) and two days of surveillance observations of the Applicant by police at the Maple Crest Inn.
[12] The ITO provided information about the Affiant’s professional training and experience including the fact that he had been a police officer for 20 years (at the time the ITO was sworn in August 2020) and that he has been involved in many criminal investigations involving drugs and violent crimes. He has experience working with CIs and in the preparation of packages to seek judicial authorizations.
[13] Regarding the background of the investigation, the Affiant wrote that he was previously aware of information regarding the Applicant in possession of a gun at the location in question and had been “working the file” as recently as August 6, 2020 (the day before the warrant issued). Then, on August 7, 2020, another officer advised the Affiant that he had received information from two sources that the Applicant was in possession of a loaded .22 calibre handgun inside room 124 of the Maple Crest Inn.
Information from anonymous caller
[14] On August 6, 2020, Kingston Police received an anonymous call about a male in possession of drugs and guns at 1454 Princess Street. A description was given of a white male in his 30’s, with a “mohawk” at that location with females working as escorts and that these people had a gun and drugs.
[15] The anonymous caller said something about the people and a car but when Kingston Police patrol officers arrived at the location to look for the people described, the vehicle that had been described had left and no person was seen matching the description given.
Information from Source A
[16] On a date in August 2020, Source A’s handler advised the Affiant that, according to Source A, the Applicant, known as “Biggie,” was currently living at the Maple Crest Inn in the fourth room from the south end of the building, on the east side, on the first floor, with a patio door leading to the parking lot. Source A said that the Applicant had a loaded .22 handgun inside the room and was selling fentanyl and cocaine out of the room. The gun was observed in the room within hours of Source A speaking to the officer. This Affiant relied on this information in forming his grounds.
[17] On what seems to have been a different date in August, 2020, Source A advised his handler that the Applicant was still in the same room that he (“he” is used as a generic pronoun to avoid repeatedly writing she/he. The gender of Source A is unknown) had previously told an officer about and was still in possession of the loaded .22 handgun. Further, Source A advised that the Applicant was in possession of fentanyl and cocaine within the past hours. This information was conveyed to the Affiant who relied on it in forming his grounds.
[18] The Affiant swore, at paragraph 42 of the ITO that “Source A observed the loaded .22 handgun inside [the unit in question.]”
Information about Source A
[19] The Affiant indicated that Source A’s handler was an officer with 19 years of policing experience at the time the ITO was sworn. The handler had policed in various roles including in the drug enforcement unit, intelligence gathering and ultimately as a supervisor.
[20] The Affiant advised that Source A was interested in helping the police for charge considerations and for moral reasons.
[21] Source A had been speaking to his handler for the previous 12 months about drug dealing, wanted parties and property offences in Kingston. As of the date the ITO was sworn, Source A had provided his handler with information relating to drug trafficking which resulted in the arrest of multiple parties on charges under the Controlled Drugs and Substances Act (“CDSA”). Source A had also provided information that led to the arrest of two wanted parties and the recovery of stolen merchandise.
[22] The Affiant swore that Source A was confirmed reliable based on information provided outside of the present investigation.
Information from Source B
[23] On a date in August, 2020, Source B advised his handler that he (again, “he” is being used as a generic pronoun, for the same reasons cited above) purchased fentanyl at the Maple Crest Inn in the fourth room from the back of the hotel, facing east, from Sean Patrick who goes by the name “Biggie”. Source B described Biggie as being a white male with a “Mohawk” style haircut and described the quantity and colour of the fentanyl purchased. This information was conveyed to the Affiant who relied on it in forming his grounds.
[24] It is unknown when Source B purchased the fentanyl from the Applicant at the location in question.
Information about Source B
[25] The Affiant indicated that Source B’s handler had 17 years of policing experience at the time the ITO was sworn. Source B’s handler’s career path essentially mirrored that of Source A’s handler with the exception that he became a supervisor in 2020 as opposed to 2018.
[26] The Affiant advised that Source B was interested in helping the police for financial considerations and for moral reasons.
[27] Source B had been speaking to his handler since 2014 about drug dealing offences in Kingston. As of the date the ITO was sworn, Source B had provided his handler with information relating to drug trafficking which resulted in the arrest of one party in possession of fentanyl which led to charges under the CDSA.
[28] The Affiant swore that Source B was confirmed reliable based on information provided outside of the present investigation.
Surveillance observations
[29] On August 6, 2020, the Affiant conducted surveillance at the Maple Crest Inn and saw the Applicant exit the Maple Crest Inn on the south end. The Affiant noted that the Applicant was tall, white, in his 30s and had a “Mohawk” style haircut.
[30] On August 7, 2020, members of Kingston Police conducted surveillance at the same location and noted the Applicant emerging from the room at the fourth door from the south on the east side, which was observed to be room 124. It was also noted, in the words of the Affiant, that “multiple people [were] observed attending the unit consistent with drug trafficking.”
Information about the Applicant
[31] The Affiant provided information about the Applicant from the Kingston Police Records Management System (“RMS”) which was essentially that the Applicant had had various contacts with Kingston Police, some of which resulted in charges being laid for offences of violence and that the address on file with RMS was not the Maple Crest Inn.
[32] The Affiant provided information about the Applicant from the Police Automated Registration Information System (“PARIS”) which was essentially that the Applicant was listed under yet another address and was a suspended driver as a result of unpaid fines and for medical reasons.
[33] The Affiant indicated that there were no firearms or firearms licenses registered to the Applicant and that he was bound by four separate s. 110 Criminal Code weapons prohibitions.
[34] Under the heading “Criminal Record” the Affiant indicated that the Applicant had 81 Criminal Code and Controlled Drugs and Substances Act “charges.” It is not clear whether the Affiant is referring to charges, some of which may be listed on the Applicant’s criminal record as stayed or withdrawn or whether he is referring to convictions. However, given that the Applicant is subject to four weapons prohibitions and has also been charged with breaching his probation, it is clear that he had at least four convictions on his criminal record. It is unknown whether any of those convictions are for drug related offences.
Conclusion of the Affiant
[35] Based on the information he received as well as the surveillance observations, the Affiant concluded on August 7, 2020 that:
• the Applicant was in room 124 at the Maple Crest Inn
• the Applicant was known by the street name “Biggie”
• that on two (redacted) dates in August, 2020, the Applicant was observed in possession of a .22 calibre handgun in room 124
• that Applicant possessed fentanyl and cocaine in room 124 and was involved in selling it.
[36] The Affiant also indicated that his experience as an investigator led him to believe that because a gun is expensive to get, it is highly valued by criminals who are not willing to part with it easily. Given that, and the fact that there was no evidence to suggest that he had tried to sell or discard the gun, the Affiant believed that the Applicant was still in possession of it at the time the ITO was sworn.
Affiant’s grounds to believe that the items to be seized were at the place to be searched
[37] The Affiant listed the following as his grounds to believe that the items to be seized were at the place to be searched:
• he believed that there was a restricted firearm in room 124 at the Maple Crest Inn
• he believed that the Applicant was in possession of fentanyl and cocaine within room 124
• his belief was grounded in the following:
o information from Source A about the location of the Applicant’s room and the fact that Source A had observed the loaded .22 handgun inside that room
o information from Source B that the Applicant had fentanyl and cocaine and that Source B had purchased fentanyl from the Applicant at that room
o the Affiant himself had observed the Applicant in the parking lot of the Maple Crest Inn
o the anonymous caller advised police that a male matching the description of the Applicant was in possession of drugs and a gun at the Maple Crest Inn
o other police officers had observed the Applicant coming and going from room 124.
Legal Principles
[38] The guiding legal principles respecting judicial authorization for searches and the review of judicial authorizations were clearly and succinctly set out by Gomery, J. in R. v. Bahlawan, 2019 ONSC 3743 at paras. 18-22. The principles which are pertinent to this Applicant are summarized as follows:
The information on which a warrant is based must make the theory advanced by the police to justify a search reasonably probable. Something is reasonably probable when it is "one of a range of realistic and likely or probable explanations for the credible clues that are considered".[^1]
If an ITO relies on tips from a confidential informer, the tip must be compelling, it must come from a credible source and it must be corroborated by police investigation. These three factors are assessed on a totality of circumstances. Weakness in one area may, to some extent, be compensated by strengths in the other two factors.[^2]
Affidavit evidence supporting an ITO must include information that will allow an issuing judge to assess the informer's reliability, including details unfavourable to the informer.[^3]
An issued search warrant is presumptively valid.[^4] The person challenging it must show that it could not have been granted on information properly before the issuing judge and any additional evidence properly filed on the review.[^5]
The reviewing judge must consider whether the affidavits before the issuing judge contained any errors, inaccuracies or misleading statements, or whether relevant information was not disclosed. Deliberate or fraudulent misstatements in the affidavits must be excised. Minor, good faith errors may or may not have to be excised, depending on whether they can be corrected through amplification evidence from the record on review and amplification is appropriate in the circumstances.[^6] Evidence cannot be used to amplify unless it was available to investigators when the ITO was sworn.[^7]
The reviewing judge must ultimately determine whether the warrant could have been issued on the corrected and potentially amplified record.[^8] As the Supreme Court has repeatedly emphasized, the reviewing judge should not focus on whether he or she would have issued the warrant, but whether, on the record before the authorizing judge as corrected and amplified on review, the issuing judge could have done so.[^9]
Did the ITO mislead the issuing justice about the surveillance observations?
[39] Counsel for the Applicant argues that when the Affiant swore at paragraph 24(3) of the ITO that during surveillance “multiple people [were] observed attending the unit consistent with drug trafficking” he made an ambiguous statement that was not “fleshed out.”
[40] Counsel for the Applicant argues that while multiple contacts with people can be consistent with drug trafficking and can give rise to reasonable and probable grounds, context matters. In the present case, the issuing justice wasn’t told any details about how many people attended, the basis for the Affiant’s statement that the activity was consistent with drug trafficking or whether there was anything observed that was not consistent with drug trafficking.
[41] Counsel for the Applicant argues that further information about the surveillance observations contradicts the notion that drug trafficking was going on at the relevant location at the relevant time. He submits that in not disclosing the details of what was observed during surveillance, the Affiant breached his duty to be full, frank and fair when swearing the ITO.
[42] The further information that counsel for the Applicant refers to is from transcripts of the cross-examination of the Affiant as well as three other officers who participated in surveillance at the Maple Crest Inn. These cross-examinations were conducted as part of the preliminary hearing in this matter. There was no application brought by the Applicant to cross-examine the Affiant on the ITO. However, the transcripts from the preliminary hearing were filed as part of the evidentiary record in this application with the consent of the Agent for the Federal Crown and so I will consider them.
[43] The transcripts reveal the following about the Affiant’s surveillance of the Maple Crest Inn on August 6, 2020 at approximately 7:30 p.m.:
• He observed a male that he recognized to be the Applicant, in the company of two unknown females, exiting a room on the south side of the Maple Crest Inn, closer to the west end of the building.
• The Applicant and the two females got into a vehicle and left, with one of the females driving.
• The Applicant had a “Mohawk” style haircut.
[44] The transcripts reveal the following about the surveillance conducted by other officers of room 124 at the Maple Crest Inn on the afternoon of August 7, 2020:
• At 1:30 p.m., an officer observed a male sitting in the sliding patio doorway of room 124. This male fit the description of the Applicant in that he was tall and slim but, because he had a hat on and because he had his head down, the officer was not able to observe whether the male had a “Mohawk” style haircut.
• At 1:40 p.m., an unknown female approached the sliding glass door to room 124. She had been walking down the street. It is unknown whether this female interacted with anyone in room 124 or whether the door was answered.
• At 1:40 p.m., the unknown female went into room 128 through the sliding glass patio door. It is unknown whether she let herself in or was allowed in by someone in the room.
• At 2:15 p.m., a female exited room 128. It is unknown whether this is the same female that entered at 1:40 p.m. The female handed something to the Applicant. It is unknown what was handed to the Applicant other than that it was small enough to be concealed in the female’s clenched hand and was passed to the Applicant without the officer being able to see what it was. Nothing was handed back to the female by the Applicant. The female went back into room 128.
• At 2:23 p.m., a male entered room 124 through the sliding glass door. It is unknown how long this male remained in the room. The front door of the unit exited into the hallway of the hotel and was not visible to the officer conducting surveillance. The male was not noted to have brought anything into the room with him.
• At 2:32 p.m., the Applicant was sitting in the sliding glass doorway of room 124, on a phone.
• At 2:33 p.m., the Applicant was out of room 124, shirtless and a “mohawk” was visible on his head.
• At 2:36 p.m., the Applicant went back into room 124.
• At 3:26 p.m., two people described by the observing officer as “a mother and child” exited a taxi and knocked on the door of room 124 and were allowed in by the Applicant. The child was estimated to be about 12 years old.
• At 3:35, the female and child left room 124 and went into room 122 through the sliding glass patio door. It is unknown how long they stayed in room 122.
• At 3:55, the Applicant is noted to be out of room 124, smoking and doing something on his phone.
• At either 2:10 p.m. or 4:10 p.m. (the transcript is unclear as first the time of “14:10” is noted and later the time is transcribed as “4:10”), the Applicant was observed at room 124, sitting down in the area where the sliding glass door to the exterior of the room would open and close. The door was open and he was sitting in the sliding glass doorway, on a cellphone and also talking to an unknown female. He was half in and half out of the room with his legs outside the sliding glass door and his body in the room.
• It was a hot, sunny day.
• At 4:25 p.m. the Applicant was noted to be outside the room, wearing a different shirt than he’d been wearing earlier. He then went inside room 124 and the blinds were closed.
• At 5:08 p.m., a male known to Kingston Police to be a fentanyl user named C.N. approached the sliding glass door and knocked on it. C.N. was let into the room and the blinds in the rooms, which had been opened, were closed by someone inside the room.
• At 5:25 p.m., Ness exited the room through the sliding glass door.
• At 5:36 p.m., an unknown male approached and knocked on the sliding glass door. The Applicant took the bike that the unknown male had arrived on and brought it into room 124.
• At 5:50 p.m., the unknown male came out of room 124 and an unknown female from room 128, which was two doors south of room 124, spoke to the unknown male and the Applicant.
• The unknown male left the area at 5:56 p.m. It is unknown whether the unknown male had the bike with him when he left. The Applicant was shirtless at this point. The unknown female from room 128 went back inside.
• At 6:15 p.m., the Applicant entered room 124 with Megan Smiley (the Applicant’s co-accused in this case). Ms. Smiley had arrived in a car sometime between 5:56 p.m. and 6:15 p.m.
• At 6:25 p.m., a female known as S.L. entered room 124 through the sliding glass patio door. S.L. was known to the observing officer because the day before, he had been engaging in proactive policing by driving through the parking lot of the Maple Crest Inn which was known to be a busy spot for drug interactions that summer, and he spotted a vehicle with plates that did not match the vehicle. S.L. and another female left the hotel in that vehicle and the officer stopped it and dealt with S.L. who was driving.
• At 6:38 p.m., the Applicant was back outside of room 124 and was texting a lot.
• At 6:55 p.m., Ms. Smiley and S.L. left room 124 and went to a vehicle.
• At 7:00 p.m., Ms. Smiley went back into room 124 briefly before returning to the vehicle where S.L. was. Ms. Smiley and S.L. appeared to know each other.
• At 7:04 p.m., an unknown male got out of a taxi and went to the door of room 124. He entered the room, stayed for two minutes and then left and went to room 128. The persons that the police believed to be in room 128 were the subject of a different investigation by the Kingston Police Drug Enforcement Unit.
[45] The surveillance observations from August 6, 2020 confirmed that the Applicant was an occupant of room 124 at the Maple Crest Inn.
[46] On the afternoon of August 7, 2020, seven adults were observed entering room 124 in a period of less than five hours. One of those people was a known fentanyl user. Another adult approached the room earlier in the afternoon and it is unknown whether she gained admittance. All these people appeared to stay in room 124 briefly, and some of them left that room and went to room 128. The occupants of room 128 were also subjects of a separate Drug Enforcement Unit investigation. A female in room 128 was observed passing something to the Applicant from a clenched fist. The Applicant was observed to spend a lot of time on the phone throughout the afternoon. The blinds were closed on more than one occasion when a person went inside the room and then emerged shortly thereafter.
[47] In my view, these observations can accurately be described as consistent with drug trafficking. It was not misleading for the Affiant to describe them as such. The Affiant did not say that drug transactions were seen, nor did he say that a weapon was seen. He swore that the surveillance observations were “consistent with” drug trafficking and, they were. They may have been consistent with other activities but that is not dispositive of the issue.
[48] While it is certainly arguable that the Affiant could have and should have put more detail in the ITO about the surveillance observations, in my view, doing so would have enhanced the grounds available to be considered by the issuing justice, not detracted from them. In saying this, I want to be clear that I am not considering the enhanced information about the surveillance observations contained in the preliminary hearing transcripts as amplifying the record of what was available to the issuing justice to consider. That would be improper as, in this case, the Crown relies on the redacted ITO alone to support the existence of reasonable grounds: R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48 (CA) and R. v. Dhillon, 2010 ONCA 582, [2010] O.J. No. 3749 (CA). I am merely responding to the assertion of Applicant’s counsel that the Affiant’s statement about the surveillance observation was misleading.
[49] If I am incorrect in my finding on this point, and the Affiant’s statement about the surveillance observations being consistent with drug trafficking was found to be misleading and a violation of the Affiant’s duty to be full, frank and fair, the proper remedy would be to excise that statement from the ITO and to consider whether, in its absence, the issuing justice could still find reasonable and probable grounds upon which to issue the authorization. I find that she could.
[50] The statement about the observations being consistent with drug trafficking is the last point that the Affiant makes about the impact of surveillance observations on his “grounds to believe.” The bulk of the Affiant’s comments about the surveillance observations point to the fact that they confirmed that the Application was in the specific location and matched the specific descriptions of him given by the anonymous caller, Source A and Source B. Seeing actual drug transactions or possession of weapons was not a precondition to the justice finding that reasonable and probable grounds existed. The fact that the Affiant swore that the police observed activity that was “consistent with” drug trafficking is only one piece of information that the issuing justice would have considered in her overall assessment of the grounds she was presented and it was not a piece of information that was heavily relied upon by the Affiant.
Was the information provided by the confidential or anonymous sources compelling, credible and corroborated?
Compelling
[51] I find the information received from the anonymous caller, Source A and Source B compelling for the following reasons:
The information was provided close in time to the investigation it was used in. The anonymous call come into Kingston Police on August 6, 2020. Sources A and B both provided information on dates in August, 2020. Given that the warrant was executed on August 7, 2020, the dates that Sources A and B provided their information had to have been between August 1 and August 7, 2020.
In the case of Source A, the information provided was gained by Source A within hours of it being provided to the police. On the first occasion that Source A provided information, he said that he had seen the Applicant in possession of the firearm within the past hours. On the second occasion that Source A provided information, he said that he had seen the Applicant in possession of drugs with the past hours.
In the case of the anonymous caller, the information provided as set out in para. 25 of the ITO was current as of August 6, 2020, the date it was provided. This is clear from the language of para. 25 as well as the fact that police attended at the Maple Crest Inn that day looking for the people and vehicle described.
In the case of Source B, the ITO is not clear as to the timeframe within which he purchased drugs from the Applicant at the location in question. However, I infer that the information provided by Source B was relatively current to the information provided by the anonymous caller and Source A because of the similarity of the physical descriptions provided of the Applicant. Further, the specific location provided and the nature of the information – that it involved drugs and guns – was also similar.
In addition, all three sources described the Applicant as engaging in the reported conduct at a hotel, which is generally considered a temporary living situation. The Applicant had two other addresses on file in the records searched by the Affiant. I infer that the Applicant was at the Maple Crest Inn temporarily and so Source B must have purchased fentanyl from the Applicant relatively close in time to the observations made by Source A and the anonymous caller because it is not likely that the Applicant would have been staying at the Maple Crest Inn for weeks or months by August, 2020.
Lastly, para. 43 of the ITO states “…Source B has provided information to Detective…that there is a quantity of fentanyl and cocaine in the possession of Sean Cartmer…[emphasis added]” This use of the present tense strongly suggests that the information Source B provided to the police is current as of the time the ITO was sworn.
- The information was specific. In the case of the anonymous caller, a detailed description was provided of a male in possession of drugs and guns at 1454 Princess Street (the Maple Crest Inn). The description included skin colour, age and the distinctive hair style.
In the case of Source A, the street name of the Applicant, the specific room he was in at the Maple Crest Inn, the specific type of gun (a .22 calibre handgun) and the fact that it was loaded and the specific drugs being sold (fentanyl and cocaine) were described.
In the case of Source B, the specific drug (fentanyl), the quantity and colour of the fentanyl, the specific room the Applicant was in, the Applicant’s street name and real name and a specific description of the Applicant were all provided.
- In the case of Sources A and B, the information was gained first hand.
As counsel for the Applicant pointed out, paragraphs 18 and 19 of the ITO do not indicate whether Source A was present during the events in question while paragraph 42 states that “Source A observed the loaded .22 handgun inside this unit.” I draw the inference that the Affiant’s sworn statement in paragraph 42 also refers to the observations noted in paragraphs 18 and 19 and that those observations were made first hand by Source A.
In the case of Source B, he purchased fentanyl directly from the Applicant.
[52] As Code, J. noted in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 at para. 40:
The information on which a warrant is based must make the theory advanced by the police to justify a search reasonably probable. Something is reasonably probable when it is "one of a range of realistic and likely or probable explanations for the credible clues that are considered".[^1]
If an ITO relies on tips from a confidential informer, the tip must be compelling, it must come from a credible source and it must be corroborated by police investigation. These three factors are assessed on a totality of circumstances. Weakness in one area may, to some extent, be compensated by strengths in the other two factors.[^2]
Affidavit evidence supporting an ITO must include information that will allow an issuing judge to assess the informer's reliability, including details unfavourable to the informer.[^3]
An issued search warrant is presumptively valid.[^4] The person challenging it must show that it could not have been granted on information properly before the issuing judge and any additional evidence properly filed on the review.[^5]
The reviewing judge must consider whether the affidavits before the issuing judge contained any errors, inaccuracies or misleading statements, or whether relevant information was not disclosed. Deliberate or fraudulent misstatements in the affidavits must be excised. Minor, good faith errors may or may not have to be excised, depending on whether they can be corrected through amplification evidence from the record on review and amplification is appropriate in the circumstances.[^6] Evidence cannot be used to amplify unless it was available to investigators when the ITO was sworn.[^7]
The reviewing judge must ultimately determine whether the warrant could have been issued on the corrected and potentially amplified record.[^8] As the Supreme Court has repeatedly emphasized, the reviewing judge should not focus on whether he or she would have issued the warrant, but whether, on the record before the authorizing judge as corrected and amplified on review, the issuing judge could have done so.[^9]
Credible
[53] On the whole, I find the information received from the anonymous caller, Source A and Source B credible.
[54] In the case of the anonymous caller, there is no history of having provided information to police in the past nor is the caller’s motivation known. However, this is not fatal. As Code, J. wrote in R. v. Greaves-Bissesarsingh, at para. 37:
Beginning with the informer’s “credibility”, it was frankly disclosed that he/she had no past history of providing reliable information to the police. This factor, standing alone, is not fatal. There are well-known and authoritative cases where completely anonymous tipsters simply call “Crime Stoppers,” without any past record of reliably informing, and where their tips have nevertheless been found “compelling.” These anonymous but “compelling” tips, supported by some corroboration, have also been held to constitute “reasonable and probable grounds.” See: R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 at 215-217 (S.C.C.); R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.). In other words, weaknesses in the “credibility” of the tip, due to a lack of any proven track record, can be overcome by strengths in the other two criteria.
[55] As I will discuss later in these reasons, I find that when all of the evidence is considered as a whole, the weakness regarding the credibility of the anonymous caller is overcome by the compelling nature of the information provided, as described above, and by the significant corroboration of it stemming from the information provided by Sources A and B and the surveillance observations.
[56] In the case of Source A, all that is known about his motivation to assist police is that it was for charge considerations and for moral reasons. While it is perhaps not surprising that the Affiant did not provide more detail on this topic, given his duty to protect the identity of the confidential informant, it makes the assessment of credibility undeniably more difficult. The fact that Source A was seeking charge considerations is important because it indicates a degree of self-interest. However, as has been pointed out in a number of cases, it would not be in the interest of an informant to provide demonstrably false information to police as it would not lead to charges against the target of an investigation and the informant would not likely be considered reliable by police in the future.
[57] Source A was believed to be reliable by the Affiant because he had provided information to police over the previous 12 months in a variety of investigations including into drug trafficking. The information provided in other investigations had led to the arrested of multiple parties and charges being laid under the CDSA. It had also led to the arrest of two wanted parties and the recovery of stolen merchandise.
[58] In the case of Source B, all that is known about his motivation to assist police is that it was for financial considerations and for moral reasons. My comments regarding the difficulty this poses are the same as those made above with respect to Source A.
[59] Source B was believed to be reliable by the Affiant because he had provided information to police over the previous 6 years regarding drug trafficking offences. The information provided had led to the arrest of one individual on CDSA charges.
[60] Counsel for the Applicant argues that there is not enough information provided regarding Source A and B’s motivation for assisting police and regarding the degree to which information they’ve provided in the past has been found to be reliable. As counsel put it, what is missing is the “denominator” relating to the total number of times the informant has given information. Without the denominator, counsel asserts, it is unknown what proportion of the time the informant’s information has in fact turned out to be reliable.
[61] As stated earlier, the Affiant may have deemed it necessary not to include such information with respect to motivation in order to protect the informants’ identities. The same may be true of the “denominator” information. To indicate the exact number of times that an informant has provided information to the police as well as the exact number of times that information has resulted in an arrest and/or charges is to provide quite specific information that could be used to identify the informer – especially in the case of Source A who had only provided information to the police for 12 months.
[62] Further, acceptance of counsel’s “denominator” argument implies that unless and until the police arrest or charge someone, the informant’s information was unreliable. While I respect this interesting argument, ably made, I do not accept the proposition. There may be many reasons why the police choose not to or cannot act upon information provided by an informant. That does not render the information false or unreliable.
[63] Counsel for the Applicant submitted that the Affiant’s failure to provide any information about the criminal records, or lack thereof, of Sources A and B means that the credibility of the sources cannot be assessed. While I agree that it would have been preferable, if possible while still protecting the identities of the informants, for the Affiant to provide at least some information about the criminal records, the failure to do so is not fatal.
[64] In R. v. Kelly, 1995 CanLII 1490 (BC CA), [1994] B.C.J. No. 1490 (S.C.), aff’d [1995] B.C.J. No. 1369 (C.A.), Hood, J. held at paras. 16-19:
Finally, I am not satisfied here that the failure to provide the informant's criminal record, whatever it may be, was of sufficient significance to the information as a whole, and was sufficiently misleading through being incomplete, that the search warrant cannot stand. I do not see how knowledge of the informant's record by the Justice of the Peace would have undermined the basis for her decision. For even with knowledge of a record she still would have had sufficient basis for issuing the search warrant.
It seems to me that it would come as a surprise to no one, including the Justice of the Peace, that the informant has a record. A record is one of the informant's main qualifications which enables him to move freely about in what has been called the underworld. Generally speaking he is not your fine upstanding citizen, and in my view there is no air of reality in attempting to assess his credibility as if he was an ordinary citizen giving evidence in the confines of a court room, and giving much weight to the fact that he has a record or that he associates with known criminals or persons in what was called the drug subculture. Whether or not an informant has a record generally will have little bearing on the issue of whether the information before the Justice of the Peace was capable of supporting a reasonable belief. True, it may be said that his record has some relevance to the informant's credibility and to the affiant's belief, and this causes me some concern. But in my view it is not so material or relevant that the failure to disclose it must destroy the otherwise firm basis of the decision of the Justice of the Peace. What is vital is the informer's past record of reliability and the extent to which the police have been able to confirm some pieces of his information. This is so because it is the reasonable basis of the affiant's belief which is being scrutinized.
It cannot be said that the information before the Justice of the Peace in the case at bar would not support a reasonable belief on the part of Constable Handy if the added factor of the record had been known by the Justice of the Peace. In Sismey the court stated that search warrant procedure should not be subject to technical objections which do not go to a substantial point in the process which authorizes the warrant; also that where there is inadvertent error in the information the proper question for the court to ask is whether, if the erroneous part were to be deleted, the information could stand by itself. In the case at bar the question is whether the information, with the added factor of a criminal record, still could have provided sufficient evidence to permit the warrant to be issued and the answer clearly is yes.
And see Melenchuk, supra, wherein one of the pieces of information alleged to have been withheld from the Justice of the Peace was "important personal characteristics of the informant." And at page 12, Mr. Justice Gibbs, speaking for the majority, had this to say:
As to the personal characteristics, there may have been some benefit to the Justice of the Peace to know that the informant was a federal parolee, that he was in fear of his life for informing and that he was seeking financial help to locate elsewhere. But, ultimately, it is not the motive of the informer which is critical but the reliability of the information supplied by him. Constable Nicholls swore that he had reasonable grounds for his belief that the informer was reliable. He expanded upon those grounds in direct and cross-examination on the voir dire. The Provincial Court judge was satisfied. In my opinion, we cannot go behind the Provincial Court judge and hold that if the Justice of the Peace had known what the provincial court judge knew on this point the search warrants would have been refused.
Sergeant Handy swore that he had reasonable grounds to believe, and that he believed, that the offence was being committed and that his informant was reliable. And he swore to other factors tending to support the reasonableness of his belief. And in my opinion, as I have said, there was ample evidence before the learned Justice of the Peace upon which she could conclude that there was a basis for the existence of reasonable belief.
[65] In the present case, the issuing justice had at least some evidence of criminal involvement on the part of Source A because the Affiant indicated that Source A’s motivation for helping the police was, at least in part, charge considerations. So, Source A either was facing or had faced criminal charges in the previous 12 months (the length of time that he had been an informant). With respect to Source B, he was known to the issuing justice to be a drug user because he had purchased fentanyl from the Applicant.
[66] The issuing justice therefore had at least some information about criminal dealings on the part of Sources A and B. But, as Hood, J. pointed out in R. v. Kelly, it will often be the case that an informant has at least incurred criminal charges because it is the fact that he is a part of the criminal subculture that allows him to be in the position to gather information of interest to the police.
Corroborated
[67] I find that the information provided by the anonymous caller and Sources A and B was corroborated by the information provided by each other and by the surveillance observations of the police.
[68] The information provided by the anonymous caller was corroborated as follows:
The physical description of the Applicant was corroborated by Source B and by the surveillance observations.
The fact that the Applicant was in possession of a gun was corroborated by Source A.
The fact that the Applicant was in possession of drugs was corroborated by Sources A and B.
The fact that the Applicant was at the Maple Crest Inn was corroborated Sources A and B and by the surveillance observations.
[69] The information provided by Source A was corroborated as follows:
The fact that the Applicant was at the Maple Crest Inn was corroborated by the anonymous caller and the fact that he was specifically in room 124 was corroborated by Source B and the surveillance observations.
The fact that there was a patio door on room 124 out to the parking lot was corroborated by the surveillance observations.
The fact that the Applicant was in possession of a gun was corroborated by the anonymous caller.
The fact that the Applicant was in possession of drugs was corroborated by the anonymous caller and the specific fact that at least one of the drugs was fentanyl was corroborated by Source B.
The fact that the Applicant was selling drugs out of room 124 was corroborated by Source B.
The fact that the Applicant was known by the street name “Biggie” was corroborated by Source B.
[70] The information provided by Source B was corroborated as follows:
The fact that he purchased fentanyl from the Applicant was corroborated by Source A’s information that the Applicant was dealing fentanyl out of room 124.
The fact that the Applicant’s first name was Sean is corroborated by the fact that it is true. It is important to note that the Applicant’s name was known to the police at the time the ITO was sworn.
The fact that the Applicant was known by the street name “Biggie” was corroborated by Source A.
The fact that the Applicant was at the Maple Crest Inn was corroborated by the anonymous caller and the fact that he was specifically in room 124 was corroborated by Source A and the surveillance observations.
The physical description of the Applicant was corroborated by Source B and by the surveillance observations.
[71] Counsel for the Applicant points out that the surveillance observations did not include any actual drug transactions or any sighting of the Applicant with a gun. He also argues that there may have been innocent explanations for the comings and goings that the police observed at the Maple Crest Inn on August 7, 2020. However, this is neither surprising nor fatal. It is not logical to expect illegal drug trafficking transactions to be completed out in the open for all to see. Nor is it logical to expect a person in possession of an illegal handgun to carry it on his person in a manner visible to others. Instead, drug transactions are typically carried out in hotel rooms or cars or small, confined and less visible public spaces where drugs and money can be exchanged without detection.
[72] It is not a requirement that the police corroborate evidence of criminal activity through observation of that criminal activity being carried out. Further, while there may be innocent explanations for activities that the police observe while conducting surveillance, that is not fatal to the objective reasonableness of the Affiant’s subjective belief that the Applicant was in possession of drugs and a loaded handgun and that evidence of that criminal activity would be found in room 124 of the Maple Crest Inn.
[73] In R. v. Ha, 2018 ABCA 233, [2018] A.J. No. 801 (C.A.), Schutz, J.A. wrote:
I note that R v Bui, 2018 ABCA 62 at para 12, 144 WCB (2d) 432, articulates a standard "approaching the more-likely-than-not point on the scale of certainty", and Quilop at paras 32-34 seems to suggest that the formation of reasonable and probable grounds requires the police to eliminate "innocent explanation[s]" that may account for their observations. To the extent that these cases are understood to have imposed additional legal requirements, or laid down fixed rules, they are being over-read because such requirements do not accurately state the law.
I further note that para 27 of Quilop, the specific paragraph cited by the appellant, mis-quotes the test from Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 167, 11 DLR (4th) 641 [Hunter]. Therein it says that Hunter characterized reasonable grounds as "the point where credibility based probability replaces suspicion". Given the Quilop Court's subsequent correct references to "credibly-based probability", however, I have no doubt that Hunter was understood as actually saying that "[t]he 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."
In any event, contrary to what paragraph 32 of Quilop seems to be suggesting, the mere fact that there may be other plausible, innocent explanations for a transaction observed by a police officer does not prevent, or preclude, the formation by an experienced, knowledgeable police officer of reasonable and probable grounds that she or he is observing an illegal transaction.
Put another way, the presence of other possible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negate credibly-based probability, that is, reasonable and probable grounds. All that Cst Campeau required was to have an objectively reasonable basis for believing the appellant was engaged in an illicit drug transaction, without necessarily ruling out potentially innocent inferences, defences or lawful excuses: see, for example: R v MacCannell, 2014 BCCA 254 at para 45, 314 CCC (3d) 514.
[74] The Alberta Court of Appeal revisited this issue in R. v. Warsame, [2018] A.J. No. 1184 (C.A.) and held:
Ambivalent transactions. The surveillance officers observed a number of brief interactions near the target house which they interpreted as being drug transactions. Some of those involved were known to have prior records relating to drugs. The appellant argued that there may have been innocent explanations for those interactions, but the mere possibility of innocent explanations does not preclude the officers from having reasonable grounds to believe that the transactions were criminal in nature: R. v Ha, 2018 ABCA 233 at paras. 33-4, 89, 71 Alta LR (6th) 46.
[75] While I have engaged in an analysis of the Debot criteria under the separate headings of compelling, credible and corroborated, this is not meant to convey that they are three separate considerations that are isolated and independent of each other. It is the totality of the information obtained from the anonymous caller, Sources A and B and the surveillance observations that must be considered, not pieces of evidence in isolation.
[76] Numerous cases make it clear that weaknesses in one area can be addressed by strengths in another. In the present case I find that while there are arguably some weaknesses in the credibility of the information provided by the informants because little is known about their motivation and nothing is known about their criminal records or lack thereof, those weaknesses are adequately addressed by the strengths inherent in the compelling nature of the information and the significant degree of corroboration.
Conclusion
[77] The issue is whether the issuing justice could have issued the authorization based on the record before her.
[78] The issuing justice had information before her from two confidential informants, believed to be reliable by the Affiant, and an anonymous caller. The information, when taken together, was that the Applicant was in very recent possession of a loaded handgun and drugs, which he was selling in a specific room at the Maple Crest Inn. The informants had provided reliable information to police in the past and their information was corroborated by the information of the other and by the anonymous caller. The police observed the Applicant in the specific location described by the informants and the police observed activity that the Affiant characterized as consistent with drug trafficking.
[79] Even if the Affiant’s opinion that the surveillance observations were consistent with drug trafficking was to be excised from the grounds to be considered, I find that the issuing justice could still have issued the authorization.
[80] The Applicant’s application to exclude the evidence seized during the execution of the warrant is dismissed.
The Honourable Justice Lia Bramwell
Released: July 27, 2022
COURT FILE NO.: CR-21-56 Kingston
DATE: 20220727
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Sean Michael Cartmer
Ruling on Application TO EXCLUDE EVIDENCE pursuant to s. 8 and 24(2).
The Honourable Justice Lia Bramwell
Released: July 27, 2022
[^1]: R. v. Osman, unreported decision of the Ottawa Court of Justice on April 6, 2016 by Justice David Paciocco, as he then was, at para. 47.
[^2]: R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.) ("Crevier"), at para. 67; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 ("Debot"), at para. 53.
[^3]: Crevier, at para. 68.
[^4]: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, (“Garofoli”) at p. 1452; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (C.A.), at para. 45, aff’d 2011 SCC 32, [2011] S.C.J. No. 32.
[^5]: R. v. Beauchamp, 2015 ONCA 260 ("Beauchamp"), at para. 85.
[^6]: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 ("Araujo"), at paras. 56 to 59.
[^7]: R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 85.
[^8]: Araujo, para. 57
[^9]: Beauchamp, at para. 87; Garofoli, at p. 1452; Araujo, at para. 52.