Court File and Parties
COURT FILE NO.: CR-19-2904
DATE: 20220826
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEVEN SWANSON
Defendant
Counsel:
Joshua D. Frost for the Federal Crown
Keely Duncan for Mr. Swanson
HEARD: July 21, 2022
RULING ON Mr. Swanson’s GAROFOLI[^1] APPLICATION
C. BOSWELL J.
OVERVIEW
[1] Mr. Swanson faces a four-count indictment. It is alleged that in December 2019 he was in possession of heroin, fentanyl and methamphetamine for the purpose of trafficking. It is further alleged that he simultaneously possessed Oxycodone, as well as proceeds of crime under $5,000. His trial on these charges is scheduled to proceed on September 26, 2022 in Peterborough.
[2] Mr. Swanson was arrested by officers of the Ontario Provincial Police on December 9, 2019. They had commenced an investigation of him based on tips they had received from three confidential human sources. Those tips were to the effect that Mr. Swanson was living in room 105 at the Carriage Inn Motel just outside of Peterborough, that he was selling drugs from that location including heroin, fentanyl and methamphetamine, and that he would typically walk from the Carriage Inn to a neighbouring Tim Horton’s restaurant to conduct his drug sales.
[3] A background check on Mr. Swanson revealed that he had a 2011 conviction for possessing a Schedule I substance for the purpose of trafficking and that he was facing outstanding charges in Peel Region for possession of a variety of Schedule I substances for the purpose of trafficking in them.
[4] OPP officers conducted brief surveillance of Mr. Swanson in the afternoon of December 9, 2019. An officer reported observing him walk from the Carriage Inn to the Tim Horton’s parking lot where he got into the back seat of a car. The car proceeded through the drive-thru, then Mr. Swanson exited it and walked away. The officer formed the opinion that he had witnessed a drug transaction.
[5] The police sought and obtained a warrant to search room 105 of the Carriage Inn. The warrant was executed at roughly 6:00 p.m. The police located in plain view, and seized, 15.45 grams of fentanyl, 15.5 grams of crystal methamphetamine, 20 Percocet pills, 4 sets of digital scales, 4 cells phones and $1,910 in Canadian currency. They located an additional gram of fentanyl in Mr. Swanson’s pocket during a search of his person incident to his arrest.
[6] Mr. Swanson challenges the validity of the search warrant. He submits that the issuing justice did not have a sufficient basis on which to conclude that there were reasonable grounds to believe that a crime had been committed or that evidence of that crime was likely to be located in room 105. If the court sets aside the warrant, he asks that any evidence seized during the search be excluded from evidence in his trial, pursuant to s. 24(2) of the Charter of Rights and Freedoms on the basis that it was obtained in a manner that infringed his s. 8 right to be free from unreasonable search and seizure.
[7] The following reasons explain why I have determined that the application must be dismissed.
[8] This ruling has two parts – the first procedural, the second substantive.
[9] At the outset of the hearing of Mr. Swanson’s application, his counsel sought leave to cross-examine the affiant of the Information to Obtain filed in support of the warrant application in issue in this case. After hearing brief argument, I gave a bottom-line oral ruling granting defence counsel leave to conduct a limited and focused cross-examination. I undertook to provide written reasons explaining that decision. Part One of this ruling addresses the leave issue.
[10] In Part Two of the ruling, I will address the substantive question raised on the application, namely whether there were reasonable grounds upon which the issuing justice could have authorized the warrant.
[11] Before I begin my analysis of the issues raised on the application, I will describe, in some detail, the evidence that was before the issuing justice. It is the sufficiency of that evidence that is in issue here.
The Content of the ITO
[12] The warrant application in issue in this proceeding was supported by the sworn Information to Obtain (“ITO”) of Detective Constable Stephen Gray dated December 9, 2019. [^2]
[13] The ITO has been filed on this application, but in a redacted form. As I noted earlier, the police investigation into Mr. Swanson was triggered by information received by the police from three confidential informants (“CIs”). The redactions to the ITO disclosed to defence counsel – and filed on this application – reflect information removed by the Crown on the basis of informer privilege.
[14] Crown counsel has a duty to protect the identity of CIs. The redactions made to the ITO by the Crown serve that purpose. No argument was raised in this instance over the extent of the redactions made.
[15] The substantive portion of the redacted ITO consists of 16 pages including a total of 52 paragraphs. Reference is made in the body of the ITO to an Appendix “D”, which has not been produced to the defence, nor filed with the court. The content of Appendix “D” includes the particulars of the three confidential informants (“CIs”). It has been completely redacted. In its place, Crown counsel provided defence counsel, and the court, with a summary of some of the particulars of the CIs who provided tips to the police about Mr. Swanson.
[16] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the Supreme Court set out a six-step process for reviewing a redacted ITO. Step 5 of the process allows the Crown to attempt to support the issuance of the search warrant on the basis of the material as redacted. That is what the Crown elected to do here. In other words, the Crown elected to proceed to defend the issuance of the warrant on the basis of the redacted ITO and its summary of Appendix “D”.
[17] In some cases, the Crown’s redactions to an ITO are so significant that they render the authorization unsupportable. In those cases, the Crown may apply to have the judge consider so much of the redacted materials as is necessary to support the authorization. This application triggers Step 6 of the procedure outlined in Garofoli. Where Step 6 is invoked, the court must proceed only where satisfied that the accused is sufficiently aware of the redacted material to be able to mount a challenge to it. To assist the defence in that regard, judicial summaries of the redacted material are often provided.
[18] In its factum filed in response to this application, the Crown evinced an intention to trigger Step 6. Crown counsel walked back from that position in oral argument and indicated that there would be no resort to Step 6.
[19] I note that the Crown’s summary of Appendix “D” was titled “judicial summary”. To be clear, the document is not a judicial summary within the meaning of the Step 6 procedure. It was a Crown summary of what it considered to be the non-privileged content of Appendix “D”. It was provided as part of the Crown’s ongoing disclosure obligations pursuant to R. v. Stinchombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
[20] During the voir dire, defence counsel sought a brief recess to consider her position with respect to the Crown’s summary of Appendix “D”. One of the options under consideration was whether she would ask the court to assess whether the Crown’s summary was a fair representation of the non-privileged portions of Appendix “D”. Following the recess, counsel advised that she was prepared to proceed to argue the Garofoli application on the basis of the redacted ITO and the Crown’s summary. She did not seek any further intervention by the court. The Crown’s summary was filed as Exhibit 1B on the voir dire. I have considered it, along with the contents of the redacted ITO, in the course of rendering my decision on this application.
[21] The following is a brief summary of the contents of the redacted ITO:
(a) The first 11 paragraphs are introductory in nature. They provide some basic background information about the affiant, his sources of information, the location to be searched, the offences under investigation, the definitions of some acronyms that appear in the ITO, and a brief description of Mr. Swanson;
(b) Paragraphs 12 to 17 set out some basic information about the three CIs. For the most part, paragraphs 12 to 17 simply reference Appendix “D”. The Crown’s summary of Appendix “D” indicates as follows:
(i) CI#1 received monetary consideration. CI#1 has a criminal record including convictions for crimes of dishonesty. CI#1 has provided information on multiple prior investigations that has led to multiple criminal charges and the recovery of stolen property as well as seized quantities of fentanyl, heroin and cocaine;
(ii) CI#2 received some form of consideration, but the summary does not provide any particulars. CI#2 has an extensive criminal record, is deeply involved in the drug subculture and is addicted to drugs. CI#2 has provided information in the past that has assisted in property crime and drug investigations that has led to multiple criminal charges being laid;
(iii) CI#3’s motivation to provide information was alluded to but not particularized in the summary. CI#3 is addicted to drugs and is deeply involved in the drug subculture. CI#3 has provided the police with information relating to other, ongoing investigations.
(c) Paragraphs 19-31 outline the substance of the investigation. In particular:
(i) DC Gray was first advised of the investigation on November 13, 2019. On that date he conducted a CPIC query and a criminal history check of Mr. Swanson and learned that he was at that time before the court in Brampton in relation to six drug-related charges. Moreover, he had nine entries on his criminal record, including drug-related convictions in 2005 and 2011;
(ii) CI#1 provided information that Mr. Swanson lived at room 105 of the Carriage Inn, he sold heroin and cocaine, met most clients at the Tim Horton’s, carried drugs in a satchel and was not believed to carry weapons;
(iii) CI#2 provided information that Mr. Swanson was currently staying at the Carriage Inn, sold meth and “down” from that location, and would walk to the Tim Horton’s to conduct his drug deals;
(iv) CI#3 provided information that Mr. Swanson sold all sorts of drugs, was staying at the Carriage Inn, and did the majority of his deals at the Tim Horton’s next to the Carriage Inn;
(v) Surveillance conducted on November 15, 2019 confirmed that Mr. Swanson was staying in room 105 of the Carriage Inn. Subsequent surveillance on December 9, 2019 led to an observation of Mr. Swanson standing outside of room 105 talking on a cell phone;
(vi) Further surveillance on December 9, 2019 led to an observation of Mr. Swanson making a suspected drug deal at the Tim Horton’s beside the Carriage Inn. Mr. Swanson approached a car in the parking lot and entered the back seat. The car went through the drive-thru after which Mr. Swanson got out of the car and walked away; and,
(vii) Mr. Swanson was arrested in Peel Region on July 12, 2019 during a traffic stop and charged with three counts of possession of a controlled substance (one each for methamphetamine, cocaine and fentanyl). He was arrested again the next day when he was found passed out in a vehicle. Drugs were in plain view and he was arrested. A search of the vehicle yielded crystal methamphetamine, cocaine, crack cocaine, digital scales and a spoon. Mr. Swanson was charged with three counts of possession of a controlled substance for the purpose of trafficking.
(d) In paragraphs 37 to 47, DC Gray set out his grounds to believe that the things seized would afford evidence of an offence and that the things sought were presently at room 105 of the Carriage Inn. The language used in this section of the ITO is, in my view, awkward. DC Gray deposed that his grounds for believing the things seized would afford evidence of an offence included:
(i) Mr. Swanson had recently been arrested for drug possession in Peel Region;
(ii) The police were looking to seize fentanyl, methamphetamine, scales, debt lists, cell phones and currency;
(iii) Drug traffickers commonly use cell phones to communicate with customers. Mr. Swanson was observed talking on a cell phone outside of room 105 on December 9, 2019;
(iv) Drug traffickers commonly receive currency in exchange for drugs and also keep debt lists; and,
(v) Drug traffickers commonly use scales to weigh their products.
His grounds for believing that the things sought would be found in room 105 included:
(vi) Three separate human sources provided information that Mr. Swanson was dealing a variety of drugs out of the Carriage Inn; and,
(vii) Members of the Peterborough County Street Crime Unit observed Mr. Swanson complete what they perceived to be a drug transaction at the Tim Horton’s at approximately 2:48 p.m. on December 9, 2019, after which he returned to the Carriage Inn.
(e) The balance of the ITO addressed the request for a sealing order and summed up the request for the warrant.
PART ONE: THE LEAVE ISSUE
The Request for Leave
[22] Mr. Swanson sought leave to cross-examine the affiant, DC Gray, on the following issues:
(a) The nature and extent of any investigation to corroborate the information provided by CIs;
(b) The nature and extent of any independent investigations conducted by the police on the backgrounds of the CIs;
(c) The manner in which everyday activities were portrayed in the ITO as being connected to drug trafficking; and,
(d) Any other relevant areas that may come to light during the course of the cross-examination, subject to the court’s discretion.
The Governing Principles
[23] There is no presumptive right to conduct cross-examinations in the context of a Garofoli application. Counsel seeking to cross-examine the affiant of an ITO must seek leave of the court to do so. Leave will only be granted where the applicant demonstrates that there is a reasonable likelihood that the proposed cross-examination will yield evidence discrediting the existence of one or more of the grounds for the issuance of the warrant. See R. v. Garofoli, at para. 88.
[24] Even where cross-examination is permitted, reasonable limits are to be placed on the scope of the examination in order to prevent prolixity and to ensure that it remains focused on matters that are relevant and material. See R. v. Garofoli, at para. 89.
[25] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, Justice Charron confirmed that while the right to cross-examine is of fundamental importance to the criminal trial process and more specifically, the right to make full answer and defence, it is neither unlimited nor absolute. She concluded that the right to make full answer and defence is contextually informed, saying, at para. 3:
The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. The rule does not infringe the right to make full answer and defence. There is no constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.
[26] As I will explain in greater detail in the substantive part of this ruling, there is a very limited scope of review on a Garofoli application. Specifically, the reviewing justice is tasked with determining only whether the warrant could have been authorized on the basis of the sworn evidence filed in support of the warrant application. Given that narrow scope of review, any permissible cross-examination must necessarily be narrowly prescribed. It must reflect the position of counsel and be limited to matters probative of the live issue(s) to be determined on the application.
[27] Having said all of that, while the test leaves only a narrow window for cross-examination, it is not an otherwise onerous test. It is not necessary for defence counsel to demonstrate that the cross-examination will inevitably be successful. Counsel need only demonstrate that there is a reasonable likelihood that the cross-examination will elicit evidence that will be of assistance to the court in determining a material issue.
The Parties’ Positions
[28] Defence counsel submitted that the Crown’s summary of Appendix “D” supports the conclusion that the three CIs were “dodgy characters”. It was incumbent, in her view, that the police conduct an investigation to corroborate their information. All the police appear to have done here is to observe everyday activities – talking on a cell phone and going through a Tim Horton’s drive-thru. These activities were portrayed in the ITO, she says, in a misleading way.
[29] Counsel therefore sought to cross-examine DC Gray on the lack of corroboration and on what she viewed as the misleading characterization of innocuous conduct.
[30] She did not believe the cross-examination would take more than roughly an hour.
[31] Crown counsel opposed the request for cross-examination. In his view, cross-examination could not reasonably impact on the grounds relied upon by the affiant in the ITO.
[32] Crown counsel submitted that the defence proposed only vague, thematic areas in which to conduct cross-examination. The lack of specificity suggested that the examination would amount to nothing more than a classic fishing expedition. What was sought by the defence was, in the Crown’s submission, cross-examination at large, which is not permitted on a Garofoli application.
Discussion
[33] As I noted earlier, I previously provided a bottom-line ruling granting leave for a focused cross-examination. Specifically, I permitted cross-examination in the following limited areas:
(a) DC Gray’s experience in authoring ITOs;
(b) DC Gray’s understanding of the responsibilities of an affiant of an ITO;
(c) Any efforts made by the police to corroborate the information provided to them by the CIs;
(d) DC Gray’s basis for suggesting that the use of a cell phone is consistent with drug trafficking; and,
(e) DC Gray’s basis for suggesting that the trip through the Tim Horton’s drive-thru on December 9, 2019 at 2:48 p.m. was a suspected drug transaction.
[34] I certainly agree with Crown counsel’s assertion that cross-examination at large should not be permitted. But it must be kept in mind that the burden on defence counsel on this issue was not onerous. She needed only demonstrate that there was a reasonable likelihood that the cross-examination will elicit evidence that would be of assistance to the court in determining a material issue.
[35] The way in which defence counsel’s arguments on the application were framed, her attack was essentially two-pronged. First, she asserted that there was no means, on the disclosed material, to assess the reliability of the information the police received from the CIs. In the result, there was no reasonable basis upon which DC Gray could have formed the grounds to believe that an offence had been committed and that evidence of that offence would be found in room 105. Second, she asserted that, in the face of what appeared to be “dodgy” CI information, the police mischaracterized certain innocuous conduct they observed as drug-related, which misled the issuing justice.
[36] In my view, these proposed areas of examination were at least capable of supporting the assertion that the approach by the police to this investigation and to the preparation of the ITO was insufficient and possibly reckless. That assertion was directly connected to the question of whether there were grounds to grant the authorization.
[37] The proposed cross-examination was to be brief and focused. There was no serious concern about prolixity. I narrowed the scope of the examination a little further than what was proposed by defence counsel to ensure that it remained focused on whether the affiant understood his duty to be full, frank and fair, whether the police made any effort to corroborate the CIs’ information and whether they were candid about the nature and quality of the observations made during surveillance.
The Substance of DC Gray’s Testimony
[38] DC Gray’s cross-examination was indeed brief and focused. He testified that he has been a police officer for 19 years. He said he had authored some 60 ITOs prior to the one in this case. He said he understood he had an obligation to be full, frank and fair when drafting an ITO and that it was necessary to ensure that information from confidential sources was credible, compelling and corroborated. In his opinion, he met his obligations in this case.
[39] In terms of corroborating the information provided by the CIs, he indicated as follows:
he did some background inquiries on Mr. Swanson and confirmed that he was facing serious drug charges in Peel Region;
he learned that another officer observed Mr. Swanson going into room 105 of the Carriage Inn; and,
he learned that Mr. Swanson had been seen engaging in what officers believed was indicative of a drug transaction at the Tim Horton’s beside the Carriage Inn.
[40] In terms of the reference at para. 40 of the ITO to Mr. Swanson’s use of a cell phone, DC Gray said that all he was trying to convey was that he expected to be able to locate a cell phone in room 105 if it were searched. He was outlining what items the police intended to search for. One of those items was a cell phone. And he set out that the police believed they would be able to locate a cell phone because Mr. Swanson was observed using one. DC Gray agreed that there is otherwise nothing suspicious about a person using a cell phone. Indeed, he agreed that it is unusual to come across a person nowadays who does not have a cell phone.
[41] DC Gray was, of course, asked about the officers’ observations at Tim Horton’s. He agreed with defence counsel that no hand-to-hand transaction was observed and that no observation was made of Mr. Swanson wearing a satchel or otherwise carrying anything as he walked towards Tim Horton’s.
[42] DC Gray did not agree with counsel’s suggestion that Mr. Swanson’s observed conduct was not consistent with a drug deal. He testified that, based on his experience in drug investigations, drug transactions commonly involve a person getting into a car and then exiting the car moments later. In his view, Mr. Swanson’s trip through the drive-thru in the back of a car was “weird and suspicious”.
[43] Having addressed the cross-examination issue, I will move on to consider the substantive part of the application.
PART TWO: THE SUBSTANTIVE ISSUE
The Governing Principles
[44] The warrant to search room 105 was granted under the provisions of s. 11(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[45] A justice reviewing a warrant application brought pursuant to section 11 must be satisfied, on sworn evidence, that there are reasonable grounds to believe that:
(i) a controlled substance or precursor in respect of which the CDSA has been contravened;
(ii) anything in which a controlled substance is contained or concealed;
(iii) offence-related property; or
(iv) anything that will afford evidence in respect of a CDSA offence or a related proceeds crime
is in a place described in the warrant.
See R. v. Sadikov, 2014 ONCA 72 at para. 81.
[46] The sworn evidence filed in support of the warrant applicant must satisfy the issuing justice that there are reasonable grounds to believe that an offence has been committed and that evidence of that offence is to be found in the place to be searched. These requirements are the minimum standard for compliance with s. 8 of the Charter. See R. v. Morelli, 2010 SCC 8, at para. 39.
[47] The “reasonable grounds” requirement imports a credibly based probability standard. That standard requires more than suspicion but demands less than a balance of probabilities. See R. v. Hertal, 2018 ONCA 927, at para. 20.
[48] A judicially authorized warrant is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether, on the basis of the sworn evidence filed, the issuing judge could (not should) have granted the warrant. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at para. 56, where Sopinka J. outlined the test as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[49] The onus is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the warrant in issue. To discharge that onus, the applicant must generally attack the preconditions to the warrant. In other words, the applicant must undermine the existence of reasonable grounds. If the applicant fails to undermine those grounds, a conclusion will usually follow that the issuing justice could have authorized the warrant.
[50] That said, as Justice Doherty observed in R. v. Sivrattan, 2017 ONCA 23, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rending the entire ITO unreliable as a basis on which to issue the warrant.”
[51] The analytical approach a reviewing judge should take to the sufficiency of an ITO was described by Fairburn J., as she then was, in R. v. Hertal, as above, at para. 21. She instructed that the reviewing judge must take a common sense and holistic approach and added that the ultimate question is whether the issuing justice could have found that the ITO, in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that an offence had occurred and that evidence of it could be found at the place to be searched.
[52] The reviewing judge does not necessarily limit his or her consideration to the ITO that was before the issuing justice. Erroneous or unconstitutionally obtained evidence must be excised from the original ITO. At the same time, the reviewing judge may consider, within limits, additional evidence adduced during the voir dire to correct minor errors in the ITO. As Fish, J. instructed in R. v. Morelli, as above, at para. 41:
The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (R.v Araujo, (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
The Parties’ Positions
[53] Defence counsel’s principal issue with the authorization relates to the lack of corroboration of the information provided by the three CIs. Apart from confirming that Mr. Swanson existed and had access to room 105 of the Carriage Inn, no reliable evidence was presented to the issuing justice that could reasonably corroborate the CI information. In counsel’s submission, the information provided by the CIs was not credible, compelling or corroborated.
[54] The only arguably corroborative evidence before the issuing justice was the ambiguous activity at the Tim Horton’s. The police depended on this conduct to pull most of the freight on the application and it was incapable of doing so. There was simply insufficient reliable evidence that might reasonably be believed, on the basis of which the authorization could have issued.
[55] Defence counsel further argued that the police in fact exaggerated the observations that had been made in an attempt to make it appear that Mr. Swanson was engaged in drug dealing. DC Gray noted that Mr. Swanson was observed using a cell phone and went on to say, at para. 40:
Drug traffickers commonly use cell phones to communicate with customers. To communicate where and when to meet…I believe that Swanson is using the phone to set up drug deals and the seizure of the phone will afford evidence of the offence of trafficking drugs.
[56] Defence counsel noted the ubiquitous nature of cell phones. The observation of Mr. Swanson on a cell phone was no more consistent with a drug transaction than it was with making an appointment with a dentist, calling one’s mother, or placing an order for take-away food. It was simply incapable of supporting the necessary grounds for the authorization. Nevertheless, it was portrayed as consistent with drug dealing.
[57] Similarly, the Tim Horton’s drive-thru transaction was exaggerated in its significance. At best it was potentially consistent with a drug transaction, but on its own was insufficient to support the authorization.
[58] In the position of the defence, the police did an insufficient investigation and were reckless in the manner in which their limited evidence was portrayed to the issuing justice. The ITO was, in the result, misleading and unreliable.
[59] The Crown, of course, took an entirely opposite position.
[60] The starting point, as the Crown correctly argued, is that the warrant in issue is presumptively valid. The onus is on the party challenging the warrant to establish that there was no basis upon which the warrant could have issued. The Crown submits that the defence has failed to meet the onus in this instance.
[61] In the Crown’s submission, the court must consider the totality of the circumstances, including the information received from the CIs and any corroborating evidence included in the ITO. Those circumstances were more than sufficient here to provide a basis upon which the authorization could have been granted. In particular,
(a) The information provided by the three informants was current;
(b) The three independent CIs provided evidence that was strikingly similar;
(c) The CIs’ information was corroborated by the evidence of police officers who observed Mr. Swanson engage in what appeared to them to clearly be a drug transaction at the Tim Horton’s beside the Carriage Inn; and,
(d) Mr. Swanson has a criminal record which includes a conviction for possession for the purpose of trafficking in a Schedule I substance and, moreover, he was facing charges in Peel Region stemming from arrests on July 12 and 13, 2018 for possession of controlled substances and possession of controlled substances for the purpose of trafficking.
Discussion
[62] This case is a close call. On balance, however, I am of the view that, although there was limited evidence available to the issuing justice to consider, it was sufficient to provide a basis upon which the authorization could have been granted.
[63] Taking a common sense and holistic view of the ITO, I find that the evidence placed before the issuing justice can be broadly described in three broad categories: (1) information received from three CIs; (2) information learned by the police through background checks; and (3) criminal conduct directly observed by investigating officers.
[64] When an ITO is based primarily on information received from a CI, a particular form of analysis must be undertaken to assess the appropriate weight to be applied to that information. CI information was only part of the evidence placed before the issuing justice, but given the significant role CI information played here, it remains worthwhile to assess that information in the manner directed by the Supreme Court.
[65] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, the Supreme Court instructed that evaluating the weight to be applied to an informant’s tip involves three concerns:
(a) Is the information compelling?
(b) Is the source of the information credible?
(c) Is the information corroborated?
[66] These three concerns are not to be approached as individual pre-requisites. They work together. The totality of the circumstances must be considered. A weakness in one area may be compensated, to some extent, by strengths in the other two. See Debot, para. 53. See also R. v. Rocha, 2012 ONCA 707 at para. 16. I will consider each factor in turn, though I will begin with the matter of credibility.
Were the CIs Credible?
[67] When assessing the credibility of a confidential informant, the authorizing justice will often be interested in the CI’s criminal record, his or her track record in providing useful information to the police, and any particular motivation they had to provide information to the police. See R. v. Brown, 2021 ONCA 119 at para. 44.
[68] The Crown summary of the redacted CI information from Appendix “D” to the ITO is not especially helpful to the assessment of the credibility of the CIs. For instance, CI#1 is said to have a criminal record including convictions for crimes of dishonesty. Without a complete picture of the criminal record it is difficult to assess its impact on CI#1’s credibility. That said, it is reasonable to believe the record detracts from, rather than enhances, CI#1’s credibility.
[69] CI#2 is said to have “an extensive criminal record” which unfortunately offers little in the way of particulars that might assist the court in assessing the significance of that record. Again, that record is unlikely to enhance the credibility of CI#2.
[70] No mention is made of a criminal record in relation to CI#3. It is unclear whether that is because CI#3 has no criminal record or if there are other reasons why it was not addressed.
[71] CI#1 received monetary compensation, though it is not clear how much. CI#2 and CI#3 received some form of consideration, or at least had some sort of motivation, but no particulars have been provided, so it is impossible for the court to assess what impact that consideration might have on the weight to be applied to their information.
[72] Each of CI#1 and CI#2 have significant track records in providing helpful information to the police. CI#3 has provided information to the police about other investigations, but it is too early to know if the information will bear any fruit.
[73] In my view, there is simply not enough information in the redacted ITO, including the Crown summary of Appendix “D”, to make a reasonable and informed decision about the credibility of any of the CIs. In the result, any determination about the weight to be afforded to their information must depend on the court’s assessment of the remaining two Debot factors.
Was the Information Compelling?
[74] Crown counsel asserted that the information provided by the three CIs was very compelling because it was, he submitted, current, detailed and involved “strikingly similar” accounts from three independent sources.
[75] I am unable to agree with much of Crown counsel’s assertions about how compelling this information was, though I recognize its superficial appeal.
[76] I accept that the CIs’ information was current. I also accept that the CIs provided similar information, arguably strikingly so. I do not have the benefit of being able to review an unredacted version of Appendix “D” but based on the redacted material filed on this application, there are two significant difficulties that undermine any assertion that the CIs’ information was compelling.
[77] First, the strikingly similar nature of the information provided by the three CIs is compelling only if those three CIs provided independent accounts. There is no means to determine, on the basis of the redacted record, whether their accounts were independent or, for instance, influenced by collusion.
[78] Second, although the information provided was reasonably detailed, there is no means available, on the basis of the redacted record, to determine what the source of each of the CIs’ information was. It is not clear whether they were providing their own, first-hand observations, or whether they were merely re-telling gossip they heard on the street.
[79] In the result, I am unable to conclude that the CIs’ information was compelling.
Was the Information Corroborated?
[80] Some of the information provided by the CIs was corroborated. For instance, on November 15, 2019, an officer conducting surveillance on the Carriage Inn observed Mr. Swanson and his girlfriend go into room 105.
[81] Subsequently, on December 9, 2019, officers of the Peterborough Street Crime Unit observed Mr. Swanson engage in what they suspected to be a drug transaction at the Tim Horton’s located beside the Carriage Inn.
Summary of the Debot Factors
[82] The application of the Debot factors in this case suggests to me that the information provided by the CIs in this instance was of questionable weight. The redacted record provides an insufficient basis upon which to assess the credibility of any of the CIs. The information provided, while detailed, cannot be said to be compelling, in light of the flaws I have identified.
[83] The issue of corroboration is a little complicated.
[84] As a general principle, it is not necessary – to support the reliability of CI information – that the police corroborate every detail provided. Moreover, “there is no rule that says that the information relating to criminality itself has to be confirmed.” See Hertal, as above, at para. 38.
[85] In this instance, however, there was corroboration of the very criminality the CIs’ information pointed to. Surveillance officers observed Mr. Swanson walk from the Carriage Inn to the Tim Horton’s parking lot and engage in what they perceived to be a drug transaction, after which he returned to the Carriage Inn. Depending on the court’s view of the officers’ interpretation of the events at Tim Horton’s, these observations may provide very strong corroboration of the CIs’ information.
[86] Whether the corroboration is sufficient, in the context of an application of the Debot factors, to support the overall reliability of the information provided by the three CIs is not an issue that I need ultimately determine. In the overall context of this case, it is not necessary that the CIs’ information was reliable. The CIs provided tips which triggered an investigation. OPP officers, acting on the tips, conducted a background check on Mr. Swanson and engaged in surveillance of him. They were able to satisfy themselves, on the basis of their investigation, that there were reasonable grounds to obtain a warrant.
[87] Having said that, the observations of the officers at the Tim Horton’s do go a long way, in my view, to corroborating the evidence of the three CIs and in that way do offer some material support for the reliability of that information.
[88] Considering the redacted ITO in a common sense and holistic manner, the observations of the surveillance officers on December 9, 2019, viewed in the context of some of the other background information available, was sufficient, in my view, to establish the reasonable grounds upon which the warrant could have been authorized.
[89] Recall that the question to be determined is whether the evidence on offer establishes a credibly based probability that an offence had been committed and that evidence of the offence would be found in the place to be searched.
[90] In this instance, DC Gray was aware that the police had received tips from three CIs to the effect that Mr. Swanson was dealing drugs including heroin, methamphetamine and fentanyl. He purportedly lived in room 105 at the Carriage Inn and generally conducted his drug deals at the abutting Tim Horton’s.
[91] Upon receipt of the CIs’ information, he conducted a background check on Mr. Swanson and found, amongst other things, that he had a criminal record from 2011 for possession of a Schedule I substance for the purpose of trafficking. Admittedly, that conviction was a little dated and might not be of significant persuasive value. But DC Gray also learned that Mr. Swanson was facing serious drug charges in Peel Region, arising in July 2018. Charges are not the same as convictions of course. Still, the circumstances were compelling. Mr. Swanson was arrested, on consecutive days, in motor vehicles that contained quantities of some very serious drugs, including crystal methamphetamine, fentanyl, cocaine and crack cocaine.
[92] DC Gray then learned that Mr. Swanson’s residence at room 105 of the Carriage Inn had been corroborated.
[93] Finally, he learned about the observations made at the Tim Horton’s in the middle of the afternoon on December 9, 2019. As I have indicated, Mr. Swanson was observed walking from the Carriage Inn to the Tim Horton’s restaurant. He got into the back seat of a car, which then proceeded through the drive-thru. When the car emerged from the drive-thru he got out and returned to his room at the Carriage Inn. Experienced drug investigators viewed that unusual transaction to be indicative of a drug deal. In my view, in all the circumstances, that was a reasonable inference to draw. It was, at a minimum, an available inference.
[94] It is a further reasonable inference that if Mr. Swanson was residing in room 105, that room 105 would be the location at which he stored his drugs. He was observed travelling from the Carriage Inn to the Tim Horton’s where he was further observed to have engaged in a transaction indicative of drug dealing. He then immediately returned to the Carriage Inn. In these circumstances, it follows that there is a reasonable probability that there will be drugs found in his residence. There was an “obvious nexus among a person, drug and location.” See R. v. Efkethari, 2012 ONSC 5140 at paras. 26-27.
[95] Considering the totality of the circumstances, there was, in my view, a reasonable basis upon which the issuing justice could have been satisfied that DC Gray’s subjective belief in the existence of reasonable grounds was objectively reasonable. Said another way, based on the background information available about Mr. Swanson and the criminality observed on December 9, 2019, there was a basis upon which the issuing justice could reasonably have concluded that there were reasonable grounds to believe an offence had been committed and evidence of that offence would be found in room 105. There was a basis upon which the warrant could issue.
[96] In the result, I am not satisfied that the defendant has met his onus to undermine the existence of reasonable grounds.
[97] I am also not satisfied that the ITO was prepared recklessly or was misleading. In my view, the observations made at Tim Horton’s were fairly presented and reasonably supported the inference suggested by the affiant. The information with respect to the cell phone was presented awkwardly but, in my view, its limited value would have been readily apparent to the issuing justice.
[98] In view of my conclusions with respect to the sufficiency of the grounds to issue the warrant, it is unnecessary to address the s. 24(2) issue.
[99] In the result, the application is dismissed.
C. Boswell J.
Released: August 26, 2022
[^1]: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421
[^2]: The OPP in fact applied for a telewarrant. There are threshold requirements that must be met before a warrant application may proceed by telewarrant, including that it would be impractical to appear personally before a justice to make an application for a warrant. See s. 487.1 of the Criminal Code. No issue was taken, in this instance, with the use of the telewarrant procedure.