2011 MBPC 75, 2011 MBPC 75

CITE# 2011 MBPC 75 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Stephen J. Christie, ) for the Crown - and - ) ) John Wyryha. ) Neil H. Kravetsky, Accused ) ) for the Accused ) Judgment delivered: ) ) November 24, 2011, at the City of Winnipeg, in Manitoba MARY KATE HARVIE P.J.

Introduction [ 1 ] This motion deals with the fine but important balance that must be struck between the need for police to protect the identity of confidential informants when applying for a search warrant while versus the rights of citizens to be protected against unreasonable search and seizure. [ 2 ] On December 14, 2009 members of the Winnipeg Police Service applied for and were granted warrants to search the residence and workplace of the accused.

As a result of the searches and other police investigation, the accused was charged under The Controlled Drugs and Substances Act . [ 3 ] The accused appeared with counsel on October 24, 2011 and elected for trial in Provincial Court. Prior to the trial date, the accused filed a motion to quash the search warrants. As a result of very helpful discussions and agreements between counsel, the issues were narrowed and argued at the outset of the trial as part of a voir dire .

Defence counsel argues that the Information to Obtain the Search warrant (“ITO”) was insufficient and that the Judicial Justice of the Peace (“JJP”) ought to have rejected the warrant requests. Crown counsel argues that the ITO contained sufficient detail to support the JJP’s decision to grant the warrants. In the event that the Court rules in favour of the defence, both counsel have agreed that there will be no argument under Section 24 (2) of The Canadian Charter of Rights and Freedoms to have the evidence seized during the search admitted at trial.

The Information to Obtain the Search Warrant [ 4 ] Copies of the two ITOs sworn in support of the search warrants were filed as exhibits in the voir dire. Two pre-printed forms entitled “Information to Obtain a Search Warrant Pursuant to

Section 11 of The Controlled Drugs and Substances Act” were completed by Constable Jay Nolet on December 14, 2009. Both ITOs are identical, except for the address of the property to be searched. Both reference “Exhibit A”, an attached document, identical for each warrant being sought, which sets out the grounds for the warrants. [ 5 ] Both Crown and defence counsel reviewed in some detail the contents of the documents during their submissions. While the documents will not be reproduced in its entirety, a general review the contents of the ITOs and “Exhibit A” indicates the following: 1.

On the date the warrant was being sought (December 14, 2009), information was received from a “registered confidential informant”; 2. The informant has a criminal record, was seeking anonymity and monetary compensation, and has previously provided information resulting in drugs “charges”; 3. The informant had attended the two locations multiple times over the preceding two months, and within the preceding 48 hours had observed quantities of Cannabis Marijuana within the two locations; 4. The informant provided a physical description of the accused, his vehicle, and the exterior of the two locations. 5.

Some general information was provided about the manner in which the accused allegedly conducted his drug dealings.

Reviewing a Search Warrant [6] It is clear that a search warrant granted by a Judge or Justice is presumed to be valid and that the onus is on the accused toestablish any violation of

Section 8 of The Charter of Rights and Freedoms: see R. v. Collins (1987), (SCC), 33 C.C.C.(3d) 1 (S.C.C.). [7] The standard for review, originally set out by the Supreme Court of Canada in R. v. Garofoli (1990), (SCC),60 C.C.C. (3d) 161 was reaffirmed by that Court in R. v. Grant (1993), (SCC), 84 C.C.C. (3d) 173 (S.C.C.), stating asfollows at p.317: The reviewing Judge does not substitute his or her view for that of the authorizing Judge.

If, based on the record which wasbefore the authorizing Judge as amplified on review, the reviewing Judge concludes that the authorizing Judge could have granted theauthorization, then he or she should not interfere. [8] The authority of a trial Judge is limited and the voir dire should not be treated as a hearing de novo.

The trial Judge mustobjectively consider the totality of the circumstances, including the information contained within the ITO to determine whether thewarrant “could have been granted” by the authorizing justice. [9] Like many search warrants involving illicit drugs, the information provided in this case came from a confidential source. Hearsay information, including information from confidential informants, can provide the basis for a search warrant if the “totality ofthe circumstances” justifies the granting of a warrant.

While there is no formulistic test, the Supreme Court in Garofoli, supra, p.191,suggested that consideration be given to the

a) degree of detail of the tip;

b) the informant’s source of knowledge; and

c) indicia ofreliability of the informant either through past performance or independent confirmation. In R. v. Debot (1989), (SCC),52 C.C.C.(3d) 193 the Supreme Court re-emphasized the need for a reviewing Judge to assess the totality of the circumstances,specifying three areas of concern, often referred to as the “three C’s”: First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a“tip” originating from a source outside the police, was that source credible?

Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? [10] The case law consistently affirms that in applying the “three C’s” in assessing Information to Obtain, a reviewing Judgecan conclude that a weakness in one area can be compensated for by strengths in other areas. Analysis of the Information to Obtain [11] In his submissions, defence counsel reviewed the ITOs in great detail, pointing out what he submitted were the shortcomings ineach paragraph.

While it is important to conduct a careful review of the specific information provided, it is equally necessary, as crowncounsel submitted, to consider the information in its totality in order to determine if the authorizing justice could have granted thewarrants. Was the tip compelling? [12] There were some details accompanying the tip received by the police. The informant outlined that he had made observationsabout significant quantities of drugs how they were allegedly being handled by the accused.

The informant estimated the amounts ofdrugs which were allegedly within the two premises, asserted that the accused was using residence as a “stash house” to hide his supplyof cannabis marihuana and cash, and to prepare it for sale, and his business as a “front” to distribute “½ pound to 1 pound quantities” ofcannabis marihuana in “large see through Ziploc bags to street level dealers.” [13] Defence counsel argues that the information contained within the ITOs is general in nature and falls short of making the tip“compelling”.

He points out that there is little if any details about the manner in which the drugs were purportedly handled by theaccused, where they were stored or packaged, or where they were allegedly hidden with the residence. Counsel rightly points out thatthere is no details within the ITO about the interior of either the residence or the business which might support the assertion that theinformant had “attended to” the locations in question “multiple times” over the months preceding the warrant application.

All detailsprovided related to descriptions of exterior of both the business and the residence. [14] Crown counsel urges the Court to proceed with caution in assessing the details contained within the ITOs. He rightly points outthat the drafter of an ITO must walk a fine line between providing sufficient information to secure a warrant without providing the kindof details which may ultimately identify the informant.

Indeed, the ITO itself indicates that, in an effort to protect the identity of theinformant, some of the details “have been generalized but not altered.” [15] Many successful drug prosecutions are only successful because of information obtained from confidential sources.

The Courtmust recognize and respect the steps taken by the police to protect the identity of confidential informants in order to encourage theircooperation and to secure their safety. [16] Having said that, it is also important to ensure that search warrants are granted only in circumstances where the information issufficient to ensure its reliability. There is little in the way of details to support the suggestions that this “tip” went beyond being onewhich was a generalized allegation of drug dealing to one which was “compelling” in its details.

While it is recognized that theinformants identity must be protected, it is hard to imagine, with the details of that were provided, that more specific details would havecompromised the identity of the informant. For example, the issuing justice was told that the informant had been within the two premises“within the past 48 hours” but provided no description of the inside of either premise. In fact, all physical observations of the premisesrelated within the body of the ITO were ones that could have been made by anyone standing someone the street.

Constable Noletactually did just that, in an effort to substantiate the information being provided to the issuing justice. These types of exteriorobservations, even as confirmed by a third party, fall short of making a tip “compelling”.

[ 17 ] Similarly, while the informant provides some general information about the manner in which the accused allegedly handled the drugs in question, little in the way of detail was provided. Other than asserting that he used his business as a “front”, no details were provided as to the time of day, number of transactions, or the method of the alleged trafficking. These types of details are those which would lift information from the general to the level of being “compelling”. Was the Source Credible? [ 18 ] The evidence as to the credibility of the source is somewhat difficult to assess.

The affiant swore that he believed the information provided by the informant to be true, and was forthright about the informant’s motivation, being monetary compensation. Crown counsel argues that the Court can give weight to the fact that this was a “register” informant.

No evidence was called in respect of the process used by the Winnipeg Police Service for “registering” an informant, and it would not be appropriate to conclude that this in any way adds to the credibility of the informant. [ 19 ] The affiant was also forthright about the informant having a criminal record, but asserted that he did not have “any convictions for perjury or public mischief.” While this information is helpful, it is does not address whether the informant had other convictions for acts of dishonesty.

While it is again recognized that information must be censored to ensure the anonymity of an informant, it is possible for an affiant to address, even in a generalized, the nature of an informant’s criminal record.

An indication as to whether an informant has convictions for offences such as crimes of violence, property crimes or other offences, helps to clarify the nature of the record and whether there are acts of dishonesty which may impact on the issue of the credibility, without going so far as to identify the informant. [ 20 ] Finally, the affiant asserted that the informant had previously provided “reliable” information resulting in the execution of drug warrants, the seizure of drugs, firearms and currency and the laying of numerous drug related charges.

While this information certainly adds to the credibility of the informant, it would have been bolstered by information as to the outcome of the charges laid and whether they all related to one incident or were a series of disclosures resulting in a variety of prosecutions. Was the Information Corroborated? [ 21 ] The ITO was sworn and the search warrants were obtained the same day that the information was provided by the informant. As already noted, the affiant attended to the vicinity of the two premises and noted that they matched the description provided.

Through computer checks he confirmed that the accused was listed as the “owner” of the business in question and was registered on the Winnipeg Tax record as the owner of the residence in question. Constable Nolet also confirmed that the accused was the registered owner of a vehicle identified by the informant as belonging to the accused.

He further confirmed through “computer checks” that the accused matched the general physical description provided by the informant. [ 22 ] While the police will often provide corroborative evidence to support confidential informant’s tip, it is clear that such corroboration need not necessarily confirm criminality: see R. v. Caissey, 2007 ABCA 380 (Alta C.A.) .

However, the nature of the corroborative evidence must be considered, and in this instance the only steps taken by the officer was to confirm, in a general way, information which was already relatively generic and readily available to a broad range of members of the public. [ 23 ] Much was made by defence counsel of the fact that the warrant was sought and obtained the same day that the information was provided. Little should be made of this, as the nature of the item in question, being cannabis marihuana, is such that prompt action is required to avoid evidence being lost.

However, while the police may act quickly, they must also act thoroughly and provide the issuing justice with a sufficient foundation for the warrants sought. Conclusion [ 24 ] The tip provided by the informant did contain some detail, but is not one which could be described as “compelling”. The source of the information had previously provided information to the authorities, and therefore had some credibility.

However, there was little meaningful corroboration of the general information provided by the informant that purported to support the information alleging illicit drug activities. [ 25 ] Bearing in mind that this is motion should not be treated as a de novo hearing, the Court must ask whether the issuing justice “could” have granted the warrants in question on the basis of the details provided in the ITO. Weakness in one area can be bolstered by strengths in other portions of the ITO or the supporting investigation.

Having reviewed the authorities in this area and the ITOs in question, I must conclude that the information provided was neither sufficiently compelling, nor meaningfully corroborated so as to allow the justice to issue the warrants in question.

While there was evidence that the informant had some credibility due to past information provided, the circumstance, taken as a whole, do not allow me to conclude that the issue justice “could” have granted the warrants on the basis of the information provided. [ 26 ] The motion by the defence to quash the search warrants granted on December 14, 2009, is granted. “Original signed by” MARY KATE HARVIE, P.J.