CRIMINAL CASE LAW
WARRANT- INFORMATION TO OBTAIN (ITO)
1.) R v AULENBACK
Judge: Justice Gauthier
Issue:
The Accused, Kyle Aulenback (“Aulenback”), has brought an application for disclosure of “the contents of the investigative file compiled and considered by the Affiant for two Informations to Obtain (ITO). At the hearing of the application, Aulenback specified that he seeks disclosure for the following:
The handwritten notes of S/Sgt. Asunmaa, provided to the Affiant, RCMP Officer David Burns on July 9, 2013;
The handwritten notes of S/Sgt. Asunmaa, provided to the Affiant, Officer Burns on October 15, 2013.
These handwritten notes relate only to Informant A. They were referenced in the material in support of the applications for the authorizations, and relied upon by the Affiant, Burns.
Rule:
The only stated reason Aulenback seeks access to the handler’s notes is to determine whether the information provided was first hand: “these documents will detail whether or not the information the informants provided was obtained from first hand observation and/or whether any words they related were spoken to them by the targets of the investigation themselves.”
The fact that information conveyed by an informant may not be firsthand information does not, in and of itself, mean that the information is not compelling; nor does it, in and of itself, mean that any subsequent warrantless search is invalid or unreasonable.
The Crown asserts privilege and opposes the application as the pool of people who could have provided the information is very small, and any further information disclosing the exact source of knowledge and/or exact conversations the Informant had with Aulenback, Boudreau.
Other information which would be contained in the handler’s notes (i.e. gender, lifestyle choices, associates…) could disclose the identity of the Informant.
Legal Analysis:
The Crown submits that the information sought is irrelevant. It will not assist Aulenback in any way at the trial proper as it relates to disputing the essential elements of the offence of possession for the purpose of trafficking.
The assessment of the value of the information provided, has already been done. The Judge concluded that the information was reasonably compelling, it was credible and it was corroborated. This is within the “totality of the circumstances” inquiry mandated by R v Debot.
Conclusion:
The application is denied.
2.) R v. DARLING
Judge: Justice S. Nakatsuru
Background:
On October 31st 2018, a warrant was executed to search the address of apartment 1509, 10 Willowridge Road, Toronto, Ontario. It was a telewarrant. This warrant was obtained because, six days earlier, it was alleged that the Applicant, MD, and 2 other men, robbed a man who was looking to buy a cell phone. One of the men had a pistol and used it to strike the Complainant.
During the early morning search, guns, drugs and money were found. The Applicant, Twany Darling, was there along with his brother, MD, who was a young person at the time. Mr. Darling is facing trial on numerous firearms, drugs and proceeds charges. At the time of the trial, he claimed his rights under SS. 8 and 9 of the Canadian Charter of Rights and Freedoms were violated. He asked for a stay of proceedings or the exclusion of the evidence as a remedy.
Issue(s):
The application was dismissed with the following as issues;
Issue 1: Were there reasonable and probable grounds in the Information to Obtain (“ITO”) for the warrant to issue?
Issue 2: Was the telewarrant validly issued?
Issue 3: Was the unannounced, dynamic entry in executing the search warrant a violation of s. 8?
Issue 4: Was the Applicant arbitrarily detained when the police delayed taking him before a justice of the peace, contrary to s. 503 of the Criminal Code?
Further Details of the Search:
The ITO states that the police were investigating an armed robbery that happened on October 25, 2018, at about 1:00 a.m. The police were dispatched and found Shehab Fathy lying on the grass. Mr. Fathy told the police officers that he had arranged to meet someone via an app to buy a cellphone. He went to a building at 44 Willowridge Road where he met a suspect at the entrance of the building under some construction scaffolding. There was a group of men present. One suspect pulled out a gun, robbed him of $1,200, and struck him on the head. Mr. Fathy ran, the suspects chased him, and Mr. Fathy got away.
Police obtained CCTV footage from the building complex and it showed the suspects waiting in the stairwell for Mr. Fathy to arrive. Mr. Fathy pulled out a white envelope and stepped into the doorway.
The next image was of Mr. Fathy running out of the doorway while being chased by at least three people. The CCTV video then showed the suspects running back into the building, up the stairwell to the fourth floor and back down into the main lobby shortly afterwards.
On October 27, 2018, DC Wesselius looked at the surveillance video and the suspect was known as MD, someone he knew to live at that apartment complex. MD was on a recognizance for charges of robbery and failure to comply with a recognizance, and was on probation for possession of a prohibited substance and a restricted weapon. MD also had a marked deformity as an extra finger on each of his hands.
ITO (Information to Obtain):
There was information received from a Confidential Source (“CS”) outlined in the ITO. The ITO states,
“a photo of the suspect in the camouflage outfit was shown to the CS. The CS advised that this male lives in 10 Willowridge, is Jamaican, 20-24 years, is fresh out of jail, and that the handler had shown a photo of him to the CS months ago. FYNES showed a photo of “Twany Darling 1996.06.14”. The CS confirmed that is the male in the camouflage outfit.”
The ITO disclosed that the CS’s motivation for providing information was monetary and charge consideration. The CS was well entrenched in a criminal lifestyle and the CS had provided information to the Toronto Police in the past.
A cross-examination was conducted on the affiant, DC Joshi. The ITO stated that the Applicant lived at the address of apartment 1509-10 Willowridge Road. The last information regarding the currency of the address in the ITO was three years earlier. A Versadex check does not state how current the address is.
DC Joshi also agreed that the police conducted no surveillance on the address and testified that he was satisfied the Applicant lived there based on the police check.
Section 8 of the Charter guarantees the right to be free from unreasonable search and seizure.
The ITO states that the police wanted to look for the clothing worn by the suspects, any firearms, and the property of the victim in the proposed search of apartment 1509-10 Willowridge Road. It comes down to whether there are reasonable and probable grounds to believe that evidence of an offence will be found at a certain place.
Legal Analysis/Rule:
Justice S. Nakatsuru found that the ITO contains reasonable and probable grounds that MD was involved in the robbery. The primary source of the identification comes from surveillance footage obtained from 44 Willowridge Road.
This recognition evidence of a police officer based upon personal knowledge of MD is sufficiently reasonable and there are probable grounds to believe MD was involved in the robbery. In addition, when Mr. Fathy was shown the surveillance footage, he was able to identify MD.
The police used a ram to batter down the door to apartment 1509. They did not announce their presence before its use. The Applicant submits that the manner of their search violated s. 8. The Crown submits that the decision to proceed by way of an unannounced dynamic entry was based on the need for the safety of everyone involved and to prevent the destruction of evidence.
S. 9 of the charter is concerning arbitrary detention. The Applicant argued that he was not brought before a Judge until 27 hours following his arrest. The Crown does agree and stated that a reduction in sentence is the appropriate remedy, should the Applicant be convicted of any offence.
In this case, it was found that the police were not in violation of s. 9. The police did not intentionally delay bringing the Applicant before a justice of the peace.
Conclusion:
In conclusion, based upon the nature of the prejudice found, a reduction in sentence may not be an alternative remedy. The Applicant failed to meet the test for stay of proceedings and it is not necessary to deal with the third aspect of the test as there is no uncertainty as to whether a stay is warranted.
3.) R. v. FLANNIGAN, 2017 ONSC 5031
Judge: Justice J.N. MORISSETTE
Charge(s):
The Applicant is charged with production of marijuana, contrary to section 7(1) of the Controlled Drugs and Substances Act (CDSA) and possession of Oxycodone contrary to section 4(1) of the CDSA.
Background:
The London Police Service (LPS) received a tip on November 6, 2015, at around 11:06 a.m. through the Drug Intelligence Information line from an individual named Pamela Geerts, about a grow operation at 276 Fairhaven Circle, London, Ontario that she had observed the day before, in the basement of the Applicant’s residence.
The officer manning the hot line, Officer Robert Popovich, conducted the usual corroboration through Versadex and Canadian Police Information Centre (CPIC) database inquiries, for both individuals, which confirmed that the Applicant was indeed the owner of the residence in question. It further confirmed that the Complainant had never provided information to Police in the past.
The following information was given to RCMP Officer McFarlane;
The Complainant, Pamela Geerts, used to stay at the residence once or twice a week.
The Complainant, Pamela Geerts, and the Applicant, Andrew Flannigan are no longer in a relationship.
The Applicant, Andrew Flannigan is growing marijuana in his basement.
The marijuana plants are hidden behind a large black tarp in the corner of the basement.
There are 12-15 marijuana plants in pots.
The marijuana plants are approximately 3 ½ feet in height.
The marijuana plants have started to bud.
The marijuana plants are growing under very bright lights.
There are fans ventilating the area and blowing outside to the backyard.
All the windows in the basement are covered with blankets.
The Applicant, Andrew Flannigan had five friends over, helping him tape the tarp into position.
The Applicant, Andrew Flannigan works as a personal support worker at McCormick Home, located at 2022 Kains Road London, Ontario.
Based on his experience, Officer McFarlane believed he had reasonable and probable grounds that an offence had been committed, and that an unlawful production of marijuana was present at the Applicant’s residence.
On November 9, 2015, based on an Information to Obtain (ITO) sworn by the affiant Officer McFarlane, Justice of the Peace Langlois issued the warrant at 12:30pm. The Applicant was arrested at 2:25pm on November 9, 2015. The warrant was executed at 2:46pm on November 9, 2015. Nineteen (19) plants of marijuana were found in the basement.
Issue(s):
The issues include whether Officer McFarlane gave the issuing justice of the peace sufficient information in the ITO so that he had reasonable and probable grounds?
Here are some more issues:
A.) Was the detention and arrest of the Applicant authorized by law?
B.) The source of information came, not from a confidential source, but rather from a tip from a person who was willing to testify about what she saw. What is the validity and credibility of this source’s insight?
In R v Debot, the Court dealt with a police search based upon information provided to them by a confidential informant. The Court held that special considerations to confirm the credibility of the information provided by an anonymous informant is required. It has been considered as the three Cs: compelling, credibility, and corroboration.
It is acknowledged that the information given by the witness is compelling.
In order to assess the credibility of the information, the court must look at the degree of detail of the “tip”; the informer’s source of knowledge; and indicia of the informer’s reliability.
The degree of detail was extensive. The source was first hand and in real time. Having said this, this individual had not ever provided information in the past to police.
Conclusion:
Officer McFarlane was not required to carry out a broad investigation in order to demonstrate to the J.P. that Ms. Geerts’ story was capable of being reasonably believed. The details provided by Ms. Geerts were such as to provide reasonable and probable grounds that a production was indeed present as described. These details, certainly met the requirements set out in Debot.
The warrant was validly issued and therefore there was no breach of the Applicant’s Charter rights. The application is dismissed.
4.) R v. GUTHRIE
Judge: Justice Fragomeni
Background:
The Applicant, Greg Guthrie, seeks an order quashing the search warrant issued on October 29, 2014, and thereby excluding the evidence obtained in the execution of the search warrant, pursuant to s. 24(2) of the Charter.
Project “OFocus” was an RCMP investigation into the connections between three shipments of cocaine that were intercepted at Pearson International Airport in 2014. In March of 2014, Annecia Morris arrived in Toronto from Port of Spain, Trinidad. Accompanying her were her four children, and 8 bags, all of which had cocaine concealed within the lining. In total, approximately 40 kilograms was seized. In May of 2014, James Gibb and Jennifer Lucchetti arrived, also from Port of Spain, Trinidad, also with cocaine in the lining of their suitcases. This time the total was approximately 20 kilograms. Finally, in October of 2014, Pamela Grey and Anita Miller arrived in Toronto from Grenada. They had 30 kilograms of cocaine concealed in the lining of their suitcases. Morris, Gibb and Grey were all charged with importing cocaine. Based on the investigation, the Crown alleges that the Applicant was the primary overseer for all 3 shipments.
On October 29th, 2014, members of the Toronto Police Service assisted the RCMP by executing the search warrant at the Applicant’s residence at 202-123 Twenty Fourth Street, Toronto, ON. Inside the residence, police located over $50,000.00 in cash, a money counter, vacuum sealers, and drug packaging. They also seized multiple cell phones and a computer. Subsequent analysis showed one of the phones had been in contact with Annecia Morris’ phone. A hard drive, on one of the computers seized, contained images of the Applicant. It contained an internet search for the very resort where Grey stayed in Grenada, at the time she was in Grenada
Cst. Gidda has been a member of the RCMP for the past 11 years. He has been assigned to the Toronto Airport Detachment, Plain Clothes, since 2011. He has not received training with respect to writing search warrants and the supporting Information to Obtain (“ITO”).
Legal Arguments:
In a certain part of the ITO, Cst. Gidda states that he reviewed the Guthrie surveillance report, but did not review all of the officers notes. He trusted that the officer's notes would be true and accurate. Cst. Gidda felt that anyone going to 72 Montebello, Vaughan, Ontario (previous authorization was sought, granted or denied), the Brissett residence, was suspicious. Cst. Gidda believed Guthrie was a drug organizer, so what Guthrie was doing was seen and characterized as suspicious.
The Applicant submits that Cst. Gidda approached his task in a biased manner. Cst. Gidda stated that everything Guthrie did was suspicious. He proceeded on the basis that Guthrie was a drug organizer so Guthrie’s activities and conduct are seen through that lens.
Further, Guthrie argues that there is material non-disclosure as it relates to the surveillance observations. The ITO makes conclusions about suspicious activity without details to support those conclusions. Police instincts do not equate to reasonable grounds.
Guthrie submits that none of the information set out in the ITO establishes a link to his residence. There is no surveillance conducted on Guthrie’s home. All of this activity is associated to 72 Montebello Avenue, the Brissett residence. Guthrie argues that there is no nexus to Guthrie’s home.
In these circumstances, Guthrie submits that there is no basis for the police to assert that evidence would be found in his home to support these allegations. Guthrie goes on to say that Cst. Gidda has no basis to make these statements that he had outlined in the ITO.
The Crown submits that there was ample evidence in the ITO upon which the authorization could have issued. The Crown points to the following as set out in the ITO such as;
Guthrie’s fingerprints were located within suitcases that imported 40 kilograms of cocaine from Port of Spain, Trinidad.
Guthrie returned from Port of Spain, Trinidad, one day before the shipment arrived.
The ITO, considered in its totality, was sufficient for the authorizing Justice to issue the search warrant. It was open for the issuing Justice to draw the inferences he did. In those circumstances, the issuing Justice found that there were reasonable grounds to think that a search of Guthrie’s residence would yield evidence in support of the allegations outlined.
Each of the concerns raised by Guthrie have to be considered and analyzed within the context of the total body of information contained in the ITO.
There are omissions made in the ITO which include the following:
ITO does not include the fact that Grey/Miller/Sovey arrived in Canada from Grenada.
There is no mention that Guthrie was not in Grenada.
There is no mention that Ms. Grey was either still intoxicated or severely hung-over when she provided her statement to police.
There is no mention that Gibb’s girlfriend, Ms. Lucchetti, gave conflicting information.
There is no mention that Ms. Morris provided the names Renee, Melissa, Kenny and Lexi when she spoke to police on March 6, 2014.
When referring to the term, “pattern of travel,” only two occasions are mentioned.
There is no mention of Guthrie travelling to Port of Spain, Trinidad, 12 times in total since 2010.
Conclusion:
It was found that the ITO did not satisfy that any of these omissions affect whether the authorizing Justice could have found reasonable and probable grounds when the ITO is considered in its totality.
In all of the circumstances, the Applicant has met his onus that his section 8 rights have been breached. The Application to exclude the evidence obtained as a result of the execution of the search warrant is hereby dismissed.
5.) R v. LEBZUCH
Judge: Justice P.T. O’Marra
Case:
The Applicant, Marcin Lebzuch, seeks an order for leave to cross-examine the affiant, Constable Martin, and the sub-affiant, Constable MacDonald, with respect to an Information to Obtain (hereinafter referred to as the “ITO”), a search warrant of the Applicant’s residence located at 56 Cowan Road, Brampton, Ontario, issued by a Justice of the Peace on October 20, 2016.
Background:
The search warrant was executed on October 25, 2016, and police seized eight computer devices from the residence. After the review of the devices seized from the Applicant’s address, it was confirmed that there was an existence of child pornography on a solid state drive of a computer device found in the basement of the residence. The Applicant was arrested and charged for Possession of Child Pornography, contrary to section 163.1 of the Criminal Code of Canada and Accessing Child Pornography, to wit: graphic computer files contrary to section 163.1(4.1) of the Code.
Applicant’s Arguments:
The Applicant argues that the ITO lacks information in important areas that explained the investigative process through which the police linked the computer user who utilized the suspected IP address 174.112.142.63 and the possession of the child pornography.
The Applicant submits that these informational shortcomings in the ITO can only be remedied if the Court grants leave to cross-examine the affiant and the sub-affiant.
If the Court grants leave to cross-examine, the Applicant submits that the areas of questioning are sufficiently narrow and will provide meaningful evidence for the Court to determine if any of the pre-conditions for the issuance of the warrant existed at the time the warrant was issued.
Issue(s):
The overarching principle behind the application is that since the basis of the ITO was the online police investigation, that gave rise to the belief that the suspected IP address possessed child pornography, and if that belief was discredited, then the factual basis of the grounds is undermined.
Crown’s Arguments:
The Crown argues that the Applicant has not demonstrated a reason why cross-examination “will elicit testimony tending to discredit the existence of a precondition to the authorization” for the warrant and therefore, should be dismissed. The Applicant has not shown a reason for why the cross-examination will elicit testimony probative to the “narrow basis upon which an authorization can be set aside.”
Since the Applicant has not demonstrated that there is a reasonable likelihood that the cross-examination can assist in discrediting any of the pre-conditions to the issuance of a warrant, the Applicant cannot simply speculate that the cross-examination of the various computer programs will yield evidence that in some way will be relevant to the narrow inquiry before the Court.
Conclusion:
On the basis of the record before the Court, the Applicant has failed to demonstrate that the proposed areas of cross-examination of the affiant or sub-affiant point to a reasonable likelihood that it will elicit testimony of probative value that will tend to discredit the basis for the authorization of the warrant.
In conclusion, the leave to cross-examine the affiant and sub-affiant is refused.
6.) R v. MEGILL, 2021 ONCA 253
Judge: Justice Carole J. Brown
Background:
There was an appeal from the conviction entered by Justice Carole J, Brown of the Superior Court of Justice, sitting with a jury, on March 1, 2018, and the sentence imposed on November 8, 2018, with reasons reported at 2018 ONSC 6486.
With a warrant, police officers entered an apartment looking for some controlled substances and offence-related property. Upon entry, they found several things; controlled substances, related paraphernalia and $335 in Canadian currency. Police found some of those things in a bedroom, where they also found Kyle Megill sitting at a computer. They also found capsules, a beige powder and a digital scale in his kitchen, as well as more bags containing a controlled substance, a tester, and more empty capsules in the living room. The controlled substances included cocaine, ketamine, BZP/TFMPP, MDMA, MDA, marijuana and psilocybin. They then found a storage unit on the same floor and found the same as well as GHB.
The jury found the appellant guilty of 6 counts of possession for the purpose of trafficking and possession of property and of proceeds of property obtained by crime. The trial Judge imposed a sentence of imprisonment of 5 years.
The Appellant, Megill, claimed his convictions were flawed, the jury charge was unfair and the trial Judge was wrong to refuse his application to challenge the search of the storage unit. His response was that the case of the Crown could not prove beyond a reasonable doubt that he was in possession of these various substances found in his apartment and storage unit. He did not seek a direct verdict of acquittal at the close of the Crown's case at trial. At the trial, he did not argue it was unreasonable and he accepted that he did it and that if the evidence established possession beyond a reasonable doubt, the purpose was to traffic it.
On March 9, 2015, officers confirmed with the property management that the tenants of the unit were David Davidson and Appellant Kyle Megill. The officer returned on June 18, 2015, where the property manager reported there were complaints about a lot of people coming to and exiting from the unit. On June 22, 2015, that’s when police arrived at the apartment complex with a warrant and then found the controlled substances, offence-related property and cash.
Appellant’s Arguments:
The Appellant advances two principal grounds of appeal against the conviction entered at trial. He says that the trial Judge erred in:
Giving an unfair and unbalanced charge to the jury; and
Refusing to hear a mid-trial application on behalf of the Appellant to challenge the reasonableness of the storage unit search and the admissibility of evidence found there.
The appellant made five specific complaints about the charge to the jury that he says, individually or cumulatively, rendered the final instructions unfair and unbalanced. Each complaint is examined and assessed for their cumulative effect on the fairness and balance so essential to a proper jury charge.
Ground #1: the unfair and unbalanced charge.
The instructions on circumstantial evidence
The inflammatory description of GHB.
The handwriting comparison.
Hearsay and the motive to fabricate
Concluding grounds #1: each discrete allegation of error would be rejected.
A claim of imbalance or unfairness in a jury charge requires an assessment of the instructions as a whole, in light of the evidence adduced, and the positions put forward by the parties at trial. The jury instructions do not convey the impression that the trial Judge was navigating the jury towards conviction.
Ground #2: The Mid-Trial Charter Application
The second ground of appeal alleges that the trial Judge erred in failing to permit trial Counsel to bring an application under s. 8 of the Charter at trial.
When the parties appeared on the scheduled trial date, they indicated that they were ready for trial. There were no pre-trial Charter applications. A jury was selected. The trial began. The second ground of appeal asserts error in the failure of the trial Judge to consider the appellant’s mental health as a mitigating factor on sentence. In some cases, mental illness can be used as a mitigating factor but for Mr. Megill, his mental health was not a factor for the misconduct.
7.) R v. POIRIER, 2016 ONSC 4010
Judge: Justice Leroy
Issue:
This is Applicant Jason Poirier’s application to quash the search warrant issued by Justice of the Peace Forgues on September 3rd, 2014, authorizing entry and search of his residence and to exclude the evidence seized as the result.
Rule:
There are three broad requirements of a valid search warrant:
The informant must present the Justice with an information upon oath that provides her with factual detail sufficient to confer jurisdiction.
The issuance of a search warrant is a judicial act. The Justice must act judicially in her independent assessment of the facts and in the exercise of her discretion whether to issue a search warrant.
The warrant to search must contain sufficient description of the objects of the search in relation to category and offence.
The Defence accepts that the warrant application meets the test for sufficiency, recognized in R v Garafoli. The Defence’s argument is that failure to record a conversation between the Justice of the Peace and Detective Langlois, immediately before the detective revised his information for re-submission, makes it impossible to review their process for impartiality and fairness in the independent assessment of the facts and exercise of judicial discretion. Counsel agrees that if the warrant is quashed, the search was unreasonable and the evidence seized would be excluded as the result of a section 24(2) Charter review.
Legal Analysis:
Detective Langlois attended before the Justice of the Peace on September 3rd, 2014, at 11:40 hours. At 13:55 hours, after reviewing the ITO, Justice of the Peace Forgues issued a Refusal of Order – Reason for Decision. Her endorsement refusing the initial warrant application was: “Insufficient information provided by which an assessment of credibility/reliability of confidential informants can be made.” There is no complaint with the endorsement.
Detective Langlois returned to the courthouse at 14:00 hours. In testimony, he characterized the deficiency discussion as one of clarification. On reflection, after reviewing the amendment to the revised ITO, he testified that Justice of the Peace Forgues said she could not ascertain, from the face of the ITO submitted, whether there was one informant disclosing to two officers, or two separate informants disclosing to the two officers. Detective Langlois depicted the omission as a deficiency. This conversation was not recorded. This interaction is an issue.
Detective Langlois said he called his partner as he walked back to the station, so his partner could promptly revise the ITO to confirm two individual informants. He collected the revised ITO and immediately returned to the courthouse, appearing again before the Justice of the Peace at 14:10 hours. This conversation was recorded and is not an issue. Detective Langlois waited in the courthouse while the Justice of the Peace reviewed the amended ITO. The warrant was granted at 14:20 hours.
Conclusion:
The record we have does not assist in a review. The detective’s recall does not add reliability to the analysis. Whether there were one or two confidential informants could not have been the issue raised for clarification. The rejected ITO thoroughly distinguishes the confidential informants. It was clear there were separate confidential informants.
The test is whether the manner in which the warrant was issued can be proven demonstrably reasonable. Whether Her Worship crossed into the realm providing direction to Detective Langlois respecting the contents of the application or not is unclear.
Conclusion:
It would be an error to conclude from this decision that either of the officers or the Justice of the Peace engaged in the prohibited drafting partnership. Rather, it is a case where the burden on the Crown of establishing warrant validity was not met. For these reasons, the warrant is quashed.
8.) R v. SMITH, 2016 ONCA 544
Judge: Justice MacPherson
Issue(s):
The Appellant, Jermaine Smith, and his co-accused, Tristan Jones and Jafari Waldron, were convicted of several firearms trafficking and drug trafficking offences. The Appellant was sentenced to five years’ imprisonment on the gun charges and seven months’ consecutive on the drug charges, less credit for 330 days of pre-trial custody.
The convictions occurred from a police investigation in Ottawa, Ontario, into the possession and trafficking of firearms. The primary issue on this appeal relates to the validity of the first Part VI wiretap authorization obtained by the police during their investigation and, specifically, the inclusion of the Appellant as a secondary target in that authorization.
The issues are:
Did the application Judge err by upholding the inclusion of the Appellant as an “other known person” in the First Authorization?
Did the sentencing Judge impose an unfit sentence?
Rule:
The Appellant also appeals his sentence on the basis of the totality principle.
The Court has released three separate sets of reasons in these appeals.
Legal Analysis:
Smith was charged with gun and drug trafficking charges as part of ‘Project Lancaster’ in Ottawa, Ontario. Smith was not the target of the Production Order and conceded on appeal that he did not have standing to challenge it.
On the application, all three accused – Jones, Smith and Waldron – challenged the First Authorization and what followed later, a Second Authorization and several search warrants. Smith’s position was that he should not have been named in the First Authorization.
The sole function of the reviewing court is to assess the record that was before the authorizing Judge, as amplified on review, and determine whether the authorization could have been issued. Importantly, the review has nothing to do with whether the reviewing Court would have issued the authorization.
The principal issue, with respect to this Applicant, concerns the sufficiency of the information to support the conclusion that intercepting this Applicant’s communications would provide evidence of the commission of an offence.
When considering the affidavit as a whole, there are reasonable grounds to believe that intercepting Mr. Smith’s communications would assist the investigation of an offence. Smith and Waldron have more than a simple association, as evidenced by Smith being called to assist with a police traffic stop. Furthermore, there is compelling information associating Waldron with firearms offences. Additionally, there is compelling information associating Smith with a firearm offence. There were objective grounds to believe that intercepting Smith’s private communications would yield evidence of the offences being investigated. The Appellant appeals from this ruling. He also appeals his sentence.
The Appellant submits that the factual information about him provided in the police affidavit – a tip from a confidential informant, four police observations of the Appellant with the co-accused Waldron over a five year period, and the Appellant’s attendance to assist Waldron at a police stop – were insufficient to justify his inclusion as an “other known person” in the First Authorization. Accordingly, the application Judge erred by finding his inclusion was justified.
The threshold for naming a party as a “known” party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party’s communications may assist in the investigation of an offence.
Conclusion:
The Appellant was convicted of seven offences. He received a five-year sentence for the firearm offences and a seven-month consecutive sentence for the drug offences, for a total sentence of five years and seven months. He was given credit for 330 days of pre-trial custody.
The Appellant contends that a global sentence of five years and seven months is too high – it violates the totality principle. He submits that the sentence should be reduced to five years. Essentially, his argument is that the sentence for the drug offences should be imposed concurrently as the offences were conducted over the same time frame. Other arguments as to sentences were advanced in the Appellant’s factum, but were abandoned in oral submissions.
Conclusion:
The sentencing Judge in this case made none of these errors. The sentencing Judge considered the totality of the circumstances and the difference between the firearm and drug sentences. The imposition of consecutive sentences and a global sentence of five years and seven months were both reasonable. The appeal was dismissed.
9.) R v. STEWART, 2017 ONSC 7193
Judge: Justice Bale
Background:
Following the execution of search warrants issued under the Controlled Drugs and Substances Act, and the Criminal Code, the accused was charged with a number of drug and weapons offences. The warrants authorized searches of two units, in an apartment building, at the Town of Whitby, Ontario.
Rule:
The accused challenged the validity of the search warrants, and applied under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, for an order that the evidence obtained upon execution of the warrants be excluded from the evidence to be given at trial.
For each of the two apartment units, there were two Informations to Obtain (ITO), one under the Code, and one under the CDSA. The ITO relied upon information provided by two confidential informants, and as a result, they were redacted.
The Crown conceded that the vetted ITO disclosed to the accused would not support issuance of the warrants, but argued that the unvetted ITO submitted to the issuing Justice was sufficient.
Legal Analysis:
Following the review of the ITOs, an ex parte hearing was held as Crown counsel. Crown counsel had agreed to make changes to the judicial summary. The agreed-upon changes were intended to increase the usefulness of the summary to the defence.
The Defence counsel then moved for an order, allowing him to cross-examine the affiant of the ITO, on certain defined issues. For oral reasons given at the time, leave was granted to cross-examine on some but not all of those issues. Following the cross examination, arguments about the competence of the judicial summary were heard, as well as with respect to material in the ITO that defence counsel argued should be excised, and as a result, a number of excisions were made.
At the conclusion of the hearing, the defence motion was dismissed with written reasons to follow. The trial then proceeded, and on December 22, 2016, the accused was found guilty of possession of a prohibited or restricted firearm with ammunition, possession of marijuana for the purpose of trafficking, and possession of cocaine for the purpose of trafficking.
Example of Excision of information contained in redacted Information to Obtain (ITO):
At the end of a mostly redacted paragraph in the overview to Appendix C, the deponent made the following statement: “surveillance was conducted on numerous occasions, and much of the Confidential Source’s information was corroborated.” Defence counsel argued that this statement should be excised, because there was only evidence of two occasions of surveillance, and very little evidence of actual surveillance. Crown counsel did not oppose the requested excision, but responded by saying that the statement was conclusory only, and that the issuing Justice would have come to his own conclusions, based upon the contents of the ITO.
Both the frequency of the surveillance, and the amount of corroboration, were overstated, and the statement was therefore excised.
The core of the ITO was the information provided by the confidential informants. Virtually, all of this information was redacted in the copy of the ITO produced to the accused. Where evidence of confidential informants is relied upon in support of a search warrant, the evidence must not only be compelling, it must come from a credible source, and be corroborated by police investigation.
The evidence of the confidential informants was compelling, by virtue of the level of detail provided.
ITO Information Disclosed:
The following information was disclosed in the ITO:
• whether he or she had a criminal record;
• whether he or she was currently facing any charges;
• whether he or she had previously provided information to Toronto Police Services;
• his or her motivation for providing information to the police; and
• how he or she obtained the information given to the police.
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