COURT FILE NO.: 277/21
DATE: 2022-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MONTEL NETHERSOLE
Counsel: L. Ducharme, for the Crown C. Demelo, for the Defendant
HEARD: September 28, 2022
RULING ON ss. 8 AND 24(2) CHARTER APPLICATION
Grace J.
A. Introduction
[1] The defendant maintains that the London Police Service (“LPS”) violated his right to be secure against unreasonable search and seizure when its officers executed a search warrant at 208 Egerton Street, London, Ontario on June 17, 2021.[^1] Mr. Nethersole asks the court to exclude the evidence that was obtained from that location on the basis its admission would bring the administration of justice into disrepute: Charter, s. 24(2).
B. The Search Warrant
[2] Justice of the Peace Waugh issued the warrant authorizing the search of the residence and a white 2018 Ford pickup truck bearing a licence plate ending in 411 on the faith of an information to obtain (“ITO”) sworn by Detective-Constable Kyle Beech.
[3] The information the ITO contained was drawn, in part, from a confidential source. Other statements were made based on investigations conducted by the police, including surveillance on June 15 and 16, 2021. Mr. Nethersole was not seen on the first day. I will come to the observations made on June 16, 2021, during the course of this ruling.
[4] The applicant maintains that the warrant should not have been issued because there was insufficient credible and reliable evidence to permit the issuing justice to find that there were reasonable grounds to believe evidence that Mr. Nethersole was unlawfully in possession of a firearm would be found at the specified time (the afternoon of June 17 or anytime on June 18, 2021) and place (208 Egerton Street).
C. Redactions and the Judicial Summary
[5] Because information was received from a confidential source, sections of the ITO disclosed to Mr. Nethersole’s counsel were heavily redacted.
[6] The Crown conceded that the challenge to the search warrant was destined to succeed unless something more was provided. Consequently, the Crown asked the court to invoke step six of R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (“Garofoli”). A draft judicial summary of the redactions was prepared and submitted by the Crown for the court’s consideration.
[7] Certain amendments were made and the final version of the judicial summary was provided to Mr. Nethersole’s lawyer. I was satisfied the final version maintained the anonymity of the confidential informant but provided enough information that the defendant’s counsel could challenge the adequacy of the ITO: R. v. Boussoulas, 2014 ONSC 5542 (S.C.J.), at para. 19.
D. The Applicable Test
[8] Most of the applicable legal principles are acknowledged by the parties’ counsel.
[9] Section 487(1) of the Criminal Code provides that a justice of the peace is authorized to issue a search warrant to search a building[^2] if “satisfied by information on oath…there are reasonable grounds to believe” the building contains anything there are reasonable grounds to believe will afford evidence with respect to the commission of an offence.[^3]
[10] That was the portion of the statutory test recited by the issuing justice in the search warrant he signed.
[11] Mr. Nethersole bears the onus on an application of this kind because a search warrant is presumptively valid: R. v. Crevier, 2015 ONCA 619, at para. 66 (“Crevier”).
[12] It is essential that an application judge remember the limited role they play. The issue is not whether that judge would have issued the warrant but whether the contents of the ITO met the statutory standard set forth in s. 487(1) of the Criminal Code. The exercise was well explained by Watt J.A. in R. v. Sadikov, 2014 ONCA 72, at para. 84:
The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued… [Citations omitted][^4]
[13] The contents of an ITO are to be considered as a whole and assessed in a common-sense, non-technical manner. The issuing justice is entitled to draw reasonable inferences from the information the ITO contains: R. v. Vu, 2013 SCC 60, at para. 16.
[14] In summarizing the relevant principles in R. v. Boussoulas, 2014 ONSC 5542 (S.C.J.), K. Campbell, J. said, at para. 21, that a search warrant may issue “if the reasonable inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO”. In R. v. Araujo, 2000 SCC 65, at para. 51, the Supreme Court of Canada said the reviewing judge must determine whether there is “at least some evidence that might reasonably be believed on the basis of which the authorization could have issued”. [Emphasis in the original][^5]
[15] If the affiant of the ITO relies on information provided by a confidential informer, the issuing justice must consider whether: (i) the source is credible; (ii) the information is compelling; and (iii) whether it was corroborated by police investigation: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1168-1171.
[16] A weakness in one area can be overcome by strengths in the others: R. v. Debot, supra, at p. 1168; R. v. Gero, 2021 ONCA 50, at para. 71.
E. The Material Available for the Court to Review
[17] There was one legal principle that was the subject of disagreement. It can be dealt with briefly.
[18] Mr. Nethersole’s counsel argued that in considering the sufficiency of the ITO, this court was only able to have regard to: (i) the redacted ITO and redacted appendices; and (ii) the approved judicial summary that was provided to the defence. The court could not consider, she submitted, the portion that was, in her words, “under the black”.
[19] That simply is not so. In Crevier, supra, at para. 71, Rouleau J.A. explained the purpose of the step six procedure outlined in Garofoli:
In step six, some information provided by or concerning the informer is not revealed to the accused but is nonetheless available to the judge in assessing the validity of the warrant. The only caveat is that the accused must be “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”[^6]
[20] Once the court has decided the accused has adequate notice of the nature of the redacted information, the reviewing judge may have regard to it when assessing the adequacy of the ITO: Crevier, supra, at para. 84. However, in assessing the weight to be given to the redactions, the reviewing judge should consider their nature, the extent to which they could have been susceptible to challenge and the degree to which the judicial summary allowed the defendant to do so: Crevier, supra, at para. 87.
F. The Adequacy of the ITO in this case
[21] The question is this: did the ITO contain enough information for the issuing justice to conclude there were reasonable grounds to believe the Egerton Street residence contained anything that would afford evidence that Mr. Nethersole was unlawfully in possession of a firearm, contrary to s. 92(3) of the Criminal Code?
[22] According to the ITO, on a specified date in 2021, the police received information from a confidential source that Mr. Nethersole was: (i) driving a white pickup truck; (ii) living in east London; and (iii) had possession of a handgun. The unredacted portion of the ITO disclosed that the confidential source had personally observed Mr. Nethersole in possession of such an item.[^7]
[23] Various computerized records were viewed by D-C Beech on June 12, 2021. He uncovered a police record from February 21, 2021. It connected Mr. Nethersole with a white Ford pickup truck bearing a licence number ending in 411.
[24] He learned that the defendant had a criminal record that included, albeit many years earlier, a conviction for unlawfully possessing a prohibited restricted weapon.
[25] The affiant also discovered that Mr. Nethersole was facing a number of charges under the Criminal Code. The allegations included several alleged offences involving firearms, including possession of one while prohibited from doing so. The officer verified that the defendant did not possess a valid firearms licence.
[26] D-C Beech noted that Mr. Nethersole had been released on a recognizance. He was required to live at a Queenston Crescent, London address with one of his three sureties. The recognizance required that the defendant remain at that location at all times subject to limited exceptions. The residential addresses of the two other sureties were noted.
[27] The 208 Egerton Street address had come up on June 12, 2021, too. Police had attended that address more than three years earlier to investigate a “trouble with person occurrence”. A note had been made that Mr. Nethersole resided at that address with a romantic partner. It is undisputed that all four addresses are in the eastern part of the City of London.
[28] The police conducted two days of surveillance starting June 15, 2021. That day was confined to the three addresses listed for Mr. Nethersole’s sureties, including the Queenston Crescent address. The accused was not seen. Nor was the white pickup truck.
[29] Surveillance continued the next day at the 208 Egerton Street address. A white Ford pickup truck bearing a licence plate ending in 411 was observed backing into the driveway early that morning. The description matched the one D-C Beech had uncovered on June 12, 2021. It also accorded with information the source had provided. That afternoon, a shirtless Mr. Nethersole was photographed accepting a food delivery at that address.
[30] Based on the observations made on June 16, 2021, D-C Beech stated his belief that Mr. Nethersole “is residing at 208 Egerton Street with his girlfriend…and is in possession of the 2018 white Ford pickup truck.”[^8]
[31] The judicial summary informed the accused that Tearaway Appendix “D” included: (i) details that had been provided to the police concerning the firearm the confidential informant had observed; and (ii) personal details concerning Mr. Nethersole.
[32] Details of the efforts undertaken to corroborate the account were outlined in the ITO and provided to the defence without any significant redactions.
[33] More substantial editing was undertaken with respect to the portions of the ITO dealing with the credibility of the source and the compelling nature of the information they had provided.
[34] With respect to credibility, the judicial summary told the accused that the ITO disclosed how information had been obtained by the confidential source. The fact that financial consideration had been paid and that the informant was aware of the consequences if false or misleading information was provided was not edited out of the version of the ITO that was disclosed. The judicial summary told Mr. Nethersole that the ITO revealed the confidential informant’s track record, if any.
[35] In terms of persuasiveness, the accused was aware from the judicial summary that the ITO disclosed whether and to what extent the information provided by the source was first or second-hand. Based on the judicial summary, Mr. Nethersole also knew that Tearaway Appendix D(i) told the issuing justice whether and to what extent the confidential informant had a criminal record or was facing outstanding charges.
[36] Having considered the ITO in its entirety, I am of the view the issuing justice could properly conclude there was a credibly based probability that Mr. Nethersole was in unlawful possession of a firearm and that evidence of the alleged offence would be found at the 208 Egerton Street address.
[37] His counsel challenges the affiant’s stated belief that Mr. Nethersole resided there. The accuracy of that assertion is, in my view, beside the point. On the first day of surveillance, Mr. Nethersole was not seen at the Queenston address specified in the recognizance signed to secure his interim release.
[38] Nor was he seen at either of the addresses provided by his other sureties.
[39] He was observed at the fourth address D-C Beech had uncovered during his review of computerized records. The defendant’s time there commenced early in the morning on June 16, 2021, and continued for many hours, until at least mid-afternoon that day. He was sufficiently comfortable that he was seen shirtless while accepting a food delivery at that address. The ITO was sworn the next day.
[40] A recent and close connection to 208 Egerton Street was established. As George J.A. wrote in R. v. Kalonji, 2022 ONCA 415, at para. 29:
…The standard for issuing a warrant is whether there are reasonable grounds to believe that there is evidence respecting the commission of an offence in the location to be searched…The standard does not require proof on a balance of probabilities…Put another way, an affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched for are at the location to be searched… [Citations omitted]
[41] In that case, as here, Mr. Nethersole was the link between the handgun the confidential informant had observed, the vehicle he drove and whatever residence he was found within. As in Kalonji, that gave “rise to a common-sense inference that” the firearm referred to in the ITO would be found in one of those locations.[^9]
[42] The ITO must only meet the minimum standard the law establishes. The sworn document the issuing justice reviewed did so. Mr. Nethersole’s rights under s. 8 of the Charter were not breached.
G. Section 24(2) Charter Analysis
[43] In case my earlier analysis is found to be wanting, I turn to s. 24(2) of the Charter and the factors set forth in R. v. Grant, 2009 SCC 32. As McLachlin, C.J. and Charron J. explained at para. 68:
… s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[44] The first branch of the inquiry is the seriousness of the Charter-infringing state conduct. In this case, a search warrant was properly sought. If the ITO did not meet the required standard, it will have been (i) a very close call and (ii) a product of the limited surveillance that was conducted.
[45] Undoubtedly the police acted quickly in this case. However, as my colleague noted in R. v. Boussoulas, supra, at para. 77, that is understandable given the inherent dangers associated with the unlawful possession of a firearm. Undoubtedly, the authorities do not get a free pass. One is not being provided. In this case, I am well satisfied D-C Beech acted in good faith and fulfilled his duty to make full disclosure to the justice of the peace. The expression of an opinion concerning Mr. Nethersole’s place of residence does not alter my view, even if incorrect. I have not identified any misconduct. If I am wrong, it is at the lowest end of the scale. This factor favours admission.
[46] I turn to the second line of inquiry; the impact of the breach on the Charter-protected interest of the defendant. A private residence was searched. It was, the defence concedes, co-owned by Mr. Nethersole. If the defendant was living there, as D-C Beech believed, the defendant had a very high expectation of privacy: R. v. Blake, 2010 ONCA 1, at para. 28. That fact favours exclusion: R. v. Grant, supra, at paras. 76-78.
[47] The final consideration is society’s interest in the adjudication of a criminal charge on its merits. As the Court of Appeal noted in R. v. Blake, supra, at para. 31:
Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.
[48] The principal piece of evidence in this case is the handgun that was located in a Gucci bag in the kitchen of 208 Egerton Street, with a magazine attached. Those items are “entirely reliable and essential to the Crown’s case”: R. v. Blake, supra, at para. 31.
[49] Balancing those assessments leads, in my view, to the conclusion that the evidence is admissible, even if the accused’s s. 8 Charter rights were violated.
H. Conclusion
[50] For the reasons given, the application under ss. 8 and 24(2) of the Charter is dismissed.
Grace J.
Released: October 12, 2022
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ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
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REASONS FOR JUDGMENT
Judge
Released: [Click and Type Date]
[^1]: Charter, s. 8.
[^2]: Among other things.
[^3]: Section 487(1)(b).
[^4]: This passage was quoted with approval in R. v. Gero, 2021 ONCA 50, at para. 67.
[^5]: Recently cited in R. v. White, 2022 ONCA 538, at para. 14.
[^6]: See more recently, R. v. Gero, 2021 ONCA 50, at para. 29.
[^7]: See para. 28.
[^8]: See the notes following paras. 20 and 26. Somewhat different language was used in para. 35. There, D-C Beech deposed that surveillance “has shown that he has access to and stays at” the Egerton Street address.
[^9]: R. v. Kalonji, 2022 ONCA 415, at para. 30.