R. v. Gray, 2013 NSPC 85

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Gray, 2013 NSPC 85 Date: September 27, 2013 Docket: 2526370 Registry: Halifax Between: Her Majesty the Queen v. Michael George Gray DECISION ON CHARTER MOTION Judge: The Honourable Judge Anne S. Derrick Heard: September 27, 2013 Oral Decision: September 27, 2013 Charges: Controlled Drugs and Substances Act , section 5(2) x 1 Counsel: Scott Millar, for the Crown Lyle Howe, for Michael Gray Introduction [ 1 ] Michael Gray has brought a

section 8 Charter application challenging the validity of the search warrant executed at his residence on November 8, 2012. The search warrant was granted pursuant to

section 11 of the Controlled Drugs and Substances Act by a Justice of the Peace on November 8, 2012 and was obtained on the basis of an Information to Obtain a Search Warrant (the “ITO”) sworn November 8, 2012 by Cst. Duane Stanley of the Halifax Regional Police Service. [ 2 ] On November 8, 2012, under the authority of the search warrant, Halifax Regional Police searched Mr. Gray’s residence at Apartment 604, 7 Horizon Court, Dartmouth, Nova Scotia. Cash, cellphones, score sheets, and marijuana were located in the search, and seized. The Crown is seeking to have these items admitted at Mr.

Gray’s trial on a charge of possession of marijuana for the purpose of trafficking. [ 3 ] Mr. Gray is asserting his

section 8 Charter rights against unreasonable search and seizure have been violated by the search of his residence and that the evidence seized by police pursuant to that search should be excluded from his trial pursuant to section 24(2) of the Charter . [ 4 ] There is no issue about Mr. Gray’s reasonable expectation of privacy in his residence at 7 Horizon Court, Apartment 604, and his entitlement to assert a Charter -protected right against unreasonable search and seizure. Mr. Gray’s Charter Motion [ 5 ] The Charter voir dire proceeded on the basis of an Agreed Statement of Facts.

No other evidence was tendered and no witnesses were called. [ 6 ] Mr. Gray submits that the ITO is invalid as it contains no reasonable grounds for issuing a search warrant for his residence. In written submissions, his counsel indicates that: “Source ‘A’ did not give a time or date as to when they saw Mr. Gray selling weed or cocaine.” [ 7 ] This submission was amplified in oral argument. Mr. Howe has indicated that the information provided by the two confidential sources relied on in the ITO by Cst. Stanley is threadbare. Mr.

Howe notes that the sources did not indicate when or how they acquired their information. He raises the spectre that the information supplied, of Michael Gray selling marijuana and cocaine, could be old information being recycled. The Agreed Facts establish that Mr. Gray was convicted of possession for the purpose of trafficking

marijuana on June 18, 2012. Mr. Howe submits that the confidential sources may have been supplying information to police that relates to a conviction that had occurred only five months before. [ 8 ] Mr. Howe’s submissions can be described as emphasizing two main themes, both related to the absence of specific detail about when the confidential sources obtained their information. Mr.

Howe attacks the ITO for containing too little information, that is, for not containing information that is compelling enough due to its lack of detail to justify the issuance of a warrant and he furthermore submits the failure of the ITO to indicate when the confidential sources observed the selling of the “weed and cocaine” leaves open the possibility that the observations relate to the earlier instance of drug-selling that led to Mr. Gray’s earlier conviction. As stated in the written submissions provided on Mr. Gray’s behalf: “…without an actual date or time frame as to when source A saw Mr.

Gray selling weed or cocaine at his apartment, it is conceivable that source A is referring to the prior offence that Mr. Gray has already been convicted for in the spring of 2012.” [ 9 ] On this basis Mr. Gray argues the ITO is ambiguous and does not constitute the reasonable grounds required for the issuance of a search warrant. The Information to Obtain [ 10 ] As I have noted, the ITO was sworn by a Halifax Regional Police officer, Cst. Duane Stanley on November 8, 2012. Cst. Stanley was assigned to the Integrated Drug Section.

In the ITO he provided the following information under oath: • That he has participated in the execution of “no less” than 40 search warrants under the CDSA; • That he has experience in the handling of confidential human sources and maintains regular contact with numerous confidential sources and persons involved in criminal activity; • That he was contacted on November 7 by Source “A”, a confidential source who had supplied information previously and whose information had led to successful searches and seizures by police under CDSA and CC search warrants on nine occasions; • That Source “A”s information has previously been corroborated through police investigation, physical surveillance, and information provided by other confidential informants; • That Source “A”, although having a criminal record, has never been charged or convicted of fraud, perjury, or false pretense type offences, and has never provided information that is false, inaccurate, or led to a negative search; • That the information he received from Source “A” on November 7, 2012 is that “Mike” Gray “is selling” weed and cocaine from apartment 604, 7 Horizon Court, in Dartmouth; • That he confirmed through the Versadex police database that Michael Gray (DOB October 19, 1979) was living at 7 Horizon Court, unit 604, in Dartmouth; • That he confirmed through Versadex that Michael Gray had previously lived in Eastern Passage; • That Michael Gray’s residence at 7 Horizon Court, apartment 604, Dartmouth was confirmed to Cst.

Stanley by a report of Cst. Goodwin who did a check at that address on behalf of probation services because Mr.

Gray’s ankle bracelet had not shown motion for over 80 minutes; • That he confirmed through a CPIC check on November 7, 2012 that Michael Gray has prior criminal convictions, including a conviction for possession for the purpose of trafficking; • That he confirmed through a Versadex query on November 7, 2012 that Michael Gray was on a Conditional Sentence Order; • That he did a brief surveillance on 7 Horizon Court, Dartmouth and noted that it is located behind MicMac Mall. • That he was in contact on November 8, 2012 with D/Cst.

Robbie Baird who handles a confidential source, Source “B”; • That Source “B” has supplied information to police leading to the execution of CDSA and CC warrants on no less than three occasions leading to charges under the CDSA and CC ; • That Source “B”, although having a criminal record, has never been convicted of fraud or perjury, and has never provided information that is false, inaccurate, or led to a negative search; • That D/Cst. Baird and Cst. Stanley believe the information supplied by Source “B” to be accurate; • That on November 7 and 8, 2012, Source “B” informed D/Cst.

Baird that “Mike” Gray “is selling” weed and cocaine from his apartment and has other people assisting him to sell drugs; • Source “B” also informed D/Cst. Baird that “Mike” Gray lives behind MicMac Mall in “the old Horizon Court building”; that he is a light skinned Black male who used to live in Eastern Passage; and that he is on house arrest; • That he, Cst. Stanley, expected a search of Michael Gray’s Horizon Court residence to find scales, cash currency, packaging, score sheets, and bulk amounts of drugs.

The Applicable Law [11] The warrant granted on November 8, 2012 on the basis of Cst. Stanley’s ITO was a

section 11 CDSA warrant.

Section 11 of theCDSA provides that, … a justice who is satisfied by information on oath that there are reasonable grounds to believe that a controlled substance…in respect ofwhich this Act has been contravened…offence related property, or any thing that will afford evidence in respect of an offence under thisAct or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code is in aplace may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance…property, or thing and to seize it. [12] A search warrant for a residence, authorized under

section 11 of the CDSA must conform to

section 8 of the Charter. The settledlaw is that for a search to be reasonable under

section 8 of the Charter, it must be: (1) authorized by law; (2) the law must be reasonable;and (3) the manner of the search must be reasonable. (R. v. Collins, [1987] 1 S.C.J. No. 15) [13] A search warrant is presumptively valid. The burden lies on the accused to displace this presumption. (R. v. Collins, (ON CA), [1989] O.J. No. 488 (C.A.), page 9) The presumption of validity and the burden on the accused is acknowledged by Mr.Gray. [14] The standard of review is a limited one. The reviewing judge does not substitute her view on the sufficiency of the grounds in theITO for that of the issuing JP.

If the grounds are such that the JP “could have” issued the warrant, then the trial judge should notinterfere. (R. v. Garofoli, (SCC), [1990] S.C.J. 115, paragraph 56; R. v. Grant, (SCC), [1993] S.C.J.No. 98, paragraph 49) The reviewing judge must carefully consider “the existence of sufficient reliable information, that is, informationthat may reasonably be believed on the basis of which the authorization could have issued.” (R. v. Arajuo, 2000 SCC 65 , [2000]S.C.J.

No. 65) It is necessary to review the “whole of the material” presented to the JP (Garofoli, paragraph 62) or what has beenreferred to as the “totality of the circumstances.” (R. v. Debot, (SCC), [1989] S.C.J. No. 118, paragraph 53) R. v.Sanchez (ON SC), [1994] O.J. No. 2260 (S.C.J.), paragraph 20 also makes this point: Search warrants are statutorily authorized investigative aids issued most frequently before criminal proceedings have been instituted.Almost invariably a peace officer prepares the search warrant and information without the benefit of legal advice.

The specificity andlegal precision of drafting expected of pleadings at the trial stage is not the measure of quality required in an Information to Obtain aSearch Warrant. The appropriate approach for judicial review of an Information to Obtain a Search Warrant, is scrutiny of the whole of the document, nota limited focus upon an isolated passage or paragraph.

An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious. [15] The law articulated in Garofoli is applicable to the issue of the 7 Horizon Court search warrant: 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 the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. (Garofoli, paragraph 56) [16] This standard was recently reiterated in R. v. Morelli, 2010 SCC 8 , [2010] S.C.J. No. 8: In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued." (R. v.

Araujo, 2000 SCC 65 , [2000] 2 S.C.R.992, para. 54) The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficientcredible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence has beencommitted and that evidence of that offence would be found at the specified time and place. (paragraph 40; emphasis in the original) [17] As the case law makes plain, the standard is not whether the issuing Justice of the Peace should have granted the warrant to searchApartment 604 at 7 Horizon Court; the issue is whether she could have done so on the basis of what she had before her.

The OntarioCourt of Appeal observed in Re Church of Scientology (No. 6), (ON CA), [1987] O.J. No. 64, if the issuing justice saysshe is satisfied on the evidence and issues the warrant, the reviewing judge "must not say that the justice should not have been sosatisfied." (page 23) [18] In this case, for the issuance of the search warrant to be upheld, I have to find that the Justice of the Peace could have beensatisfied there was "some evidence sufficient as a matter of law" that provided reasonable grounds to believe marijuana was located at

Apartment 604, 7 Horizon Court. (Re Church of Scientology (No. 6), page 23) [19] The appropriate standard of proof for the Justice of the Peace is “reasonable probability”; hearsay may contribute to theestablishing of probable cause; and the basis of informant information must be such that it constitutes more than “bald conclusorystatements” or “mere rumour and gossip.” (Debot, paragraph 55) [20] The focus for a reviewing judge is on the sufficiency of the information provided, not on what else might have been included,especially where the additional facts would not have affected the issuance of the warrant. (Canada v.

Russell, [2010] N.S.J. No. 472(S.C.), paragraph 43; R. v. Yorke, (NS CA), [1992] N.S.J. No. 474 (C.A.), page 8; R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168 (C.A.), paragraph 43) [21] The Supreme Court of Canada in Garofoli held that a tip could provide the requisite grounds for a search if its reliability could besatisfactorily established. A variety of factors are to be examined in making the reliability determination: the degree of detail of the tip;the informer's source of knowledge; and indicators of the informer's reliability such as past performance or confirmation from otherinvestigative sources.

Analysis [22] As I noted in my review of the contents of the ITO, the Justice of the Peace who issued the warrant in this case had before herinformation provided by confidential sources of known reliability who had provided accurate information to the police previously. [23] I do not find that the fact, recited in the ITO, that the sources had previously been paid for their information undermines theircredibility.

If anything, I find it would have been reasonable for the Justice of the Peace to infer from that information that the sourceshad provided reliable information to police in the past, justifying payment to them for that information. However that would not haveadded anything to what the JP already knew from the ITO: that the sources had been reliable informants previously. [24] I do not accept the Defence argument that the source information was vague or in the nature of gossip or mere rumour as wassubmitted in oral argument.

The source information is quite specific and corroborated by police databases and physical surveillance.What physical surveillance is missing would not have assisted the exercise of corroboration. As the Agreed Facts indicate, 7 HorizonCourt is a multi-story, multi-unit apartment building adjacent to a large mall. Traffic patterns and volume in the area of 7 Horizon Court,information that police surveillance may gather in a drug investigation for inclusion in an ITO, would not have been indicative ofanything specific to Mr. Gray in this case. [25] What was provided to the Justice of the Peace was compelling.

The essential details were present and they were precise: theidentity of the target, the address, the fact that Mr. Gray lived at the address, the sale of drugs, specifically, marijuana, and the fact thatthe selling was happening now. Source “B” was also able to supply the information that Mr. Gray had previously lived in EasternPassage and was on “house arrest”, information that was corroborated by Cst. Stanley’s queries of reliable police databases. Source “B”also knew that Horizon Court is behind MicMac Mall. [26] The fact that Mr.

Gray was known by the police to have been involved in the drug trade previously enhances the compelling natureof the information received from the confidential sources on November 7 and 8, 2012. [27] Contrary to the Defence submissions there is a clear indication in the ITO that each of the sources obtained his/her information as aresult of direct knowledge.

The ITO recited the following in relation to Source “A”, with the same passage repeated for Source “B”: Source “A” associates freely with persons involved in criminal activity and has personal knowledge of the information obtained hereinbased on conversations and observations of persons involved unless otherwise stated; [28] I have already made some references to the corroboration made of the information provided by the confidential sources. I note aswell that each source corroborates the other.

The two confidential sources provided almost identical information to police. [29] I am satisfied on the basis of cases referred to me by the Crown - R. v. Goodine, 2006 NBCA 109 , [2006] N.B. J. No. 496(C.A.) and R. v. Caissey, 2007 ABCA 308 , [2007] A.J.

No. 1130 (C.A.) – that the law does not require corroboration of thecriminal activity itself. (Goodine, paragraph 2; Caissey, paragraph 23) The New Brunswick Court of Appeal in Goodine had thefollowing to say on this point: Once unpacked the case on appeal boils down to the following narrow question, one of first impression in this Court: must the allegationof criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before thepolice can lawfully act upon that allegation and proceed to arrest its target?

In my view, an affirmative answer is not ordained, as a matterof law. There are cases where a trial judge could reasonably conclude that, on the totality of the circumstances, the arresting officers hadthe requisite grounds to act as they did even though the "criminal" aspect of the tip had not been corroborated in the manner suggestedabove.

Such corroboration is certainly not required by law in cases where, like the present one, there is no suggestion of any impropermotive on the tipster's part and the corroborated "neutral" data are such that a reasonable and dispassionate observer would conclude thetipster is both closely acquainted with the target and, to some extent, privy to the criminal activity being reported.

The case against afinding of unlawfulness is the more compelling where, as here, that observer would be at a loss to point to any justification - other thanfarfetched speculative possibilities - for the conclusion that the tipster's allegation of criminal conduct is unreliable. (Goodine, paragraph2) [30] On the Defence’s central submission, that the confidential sources may have been recycling stale information about Mr. Gray, Ifind it was entirely reasonable for the Justice of the Peace to believe the informant’s information was fresh. Cst. Stanley makes it clear in

the ITO that the information from Sources “A” and “B” came in on November 7 and 8, 2012. These dates were the day before and the day of the search. Source “A”s information came in the day before, as did information from Source “B”. Source “B” was also in contact with his handler, D/Cst. Baird on November 8. The information was given in the continuous present tense: both sources told police Mr. Gray is selling weed not Mr. Gray was selling weed, from his apartment. The information was not that Mr.

Gray sells weed which, as the Crown pointed out, suggests a more generalized time frame may be operating. [ 31 ] The Justice of the Peace was also aware from the ITO that the handlers for each of the confidential sources maintained regular contact with their sources. Suggesting that regular contact would lend itself to stale information being communicated is unreasonable. The submission, that Source “A” and Source “B” were passing on information to police relating to Mr.

Gray’s drug-selling activities in October 2010, two years earlier, at a completely different location and building – the Agreed Facts indicate that offence was committed in Eastern Passage at a small, single family dwelling – is fanciful. [ 32 ] My review of the totality of the information in the ITO satisfies me that the Justice of the Peace could have been amply satisfied that Sources “A” and “B” provided credible, compelling, and corroborated information justifying the issuance of the warrant to search Mr. Gray’s apartment.

She had compelling information from highly reliable sources which was corroborated but for the criminal aspect, which, as I have noted, does not have to be corroborated. [ 33 ] Mr. Gray’s Charter application is dismissed. There is no need for me to hear from counsel on the section 24(2) issue.