Her Majesty the Queen ) V. Cornick, ) for the Crown - v. –, 2019 MBPC 44

Cite: 2019 MBPC 44 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) V. Cornick, ) for the Crown - and – ) ) Leona Claeys, ) M. Schwartz and Jamie Melnyk, ) ) ) ) ) ) for the Accused Claeys and M. Gould, for the Accused Melnyk Accused ) ) ) ) Reasons for Decision delivered on the 15 th day of July A.D. 2019, at the City of Winnipeg, in the Province of Manitoba ) TRACEY M. LORD, A.C.J.

Decision on Garofoli Application [ 1 ] The applicants are challenging the facial and sub facial validity of the warrant authorizing the search of their residence at 560 Cote Street on the basis that grounds for issuing the warrant did not exist, and therefore the search was unreasonable and a violation of s. 8 of the Canadian Charter of Rights and Freedoms . (The Charter ). [ 2 ] They seek to have the items seized pursuant to the warrant excluded from evidence in their trial pursuant to s. 24(2) of the Charter . [ 3 ] The Information to Obtain the search warrant (ITO) was prepared by Constable (Cst.) D.

Flock of the Winnipeg Police Service (WPS). The applicants were granted leave to cross-examine Cst. Flock on the ITO, and did so on March 18, 2019. [ 4 ] Cross-examination was limited to the area of how the officer determined the address to be searched was 560 Cote Street, and what he knew or ought to have known about the nature of the premises. [ 5 ] The applicants contend that either based on his actual knowledge about 560 Cote Street, or alternatively based on the knowledge that he ought to have had, Cst. Flock failed to make full, fair and frank disclosure in the ITO. Evidence of Cst. Flock [ 6 ] Cst.

Flock testified as to the information gathered about the residence of Mr. Melnyk and Ms. Claeys. His initial information came from a confidential informant (CI). [ 7 ] The CI told Cst. Flock that Mr. Melnyk was selling cocaine out of his residence. The informant gave a physical description of the house and advised that the residence was located on Cote Street two houses from Evans Street. [ 8 ] The CI also told Cst.

Flock that Jamie Melnyk and his girlfriend Leona Claeys live upstairs and Jamie’s parents live on the main floor. [ 9 ] The informant confirmed that a Google street view photo of 560 Cote Street provided by Cst. Flock was the house he or she was referring to.

[ 10 ] In order to corroborate the CI’s information Cst. Flock testified that he did a number of data base checks. He searched the police database and located a prior report about 560 Cote Street. [ 11 ] The report indicated that on July 12, 2015 a member of the WPS did a wellbeing check at 560 Cote Street after receiving a report from a member of the public regarding a male yelling and swearing at a female. [ 12 ] The officer involved first spoke with Katherine Melnyk and then also spoke with Leona Claeys in what was referred to in the report as the “suite upstairs”.

There was no reference to a number or letter designation for the “suite upstairs” in the report or how it was accessed. [ 13 ] Cst. Flock testified that on its own the use of the word “suite” in the report did not cause him to question whether there were separate living units within 560 Cote Street. When taking information from this report and putting it into the ITO, Cst. Flock omitted the reference to the word “suite”. [ 14 ] Cst. Flock testified that he also conducted a data base search of the names Jamie Melnyk and Leona Claeys for driver license information.

The database provides addresses for licensed drivers, and drivers with invalid licenses. [ 15 ] An invalid license refers to a license that was once valid but is no longer so and also includes situations where someone who has never had a license has received a traffic ticket. [ 16 ] In this case, both Mr. Melnyk’s and Ms. Claeys’ license information listed 560 Cote Street as their address. Ms. Claeys also had a vehicle registered to the address. [ 17 ] Cst. Flock testified that none of the computer checks done indicated separate unit numbers or letters associated to the address of 560 Cote Street. [ 18 ] Cst.

Flock testified that he and other members of the WPS also conducted surveillance on 560 Cote Street on two or three occasions for several hours at a time in an effort to tie Mr. Melnyk and Ms. Claeys to the address and corroborate the CI’s information. [ 19 ] During the surveillance personally conducted by Cst. Flock, he noted only one door at the front of the residence. The door itself was not marked with a number or a letter.

He did not note two mailboxes at the front of the house nor did he see two mailboxes in the Google street view photo he used with the CI to identify the house. [ 20 ] Other WPS members did surveillance at the rear of the residence and provided their observations to Cst. Flock that there was one entrance, again not marked with a number or letter, and no visible stairs to the second floor. [ 21 ] Cst. Flock was not advised about the number of garbage or recycling bins at the rear of the residence. [ 22 ] As a result of the data base checks and surveillance done, Cst.

Flock was satisfied the information received from the confidential informant regarding the address to be searched was sufficiently corroborated and that it was the residence of Jamie Melnyk and Leona Claeys. [ 23 ] He said there was nothing in the information gathered that suggested to him there were two separate living quarters within 560 Cote Street, and if there had been, he would have investigated it further. [ 24 ] He confirmed he did not call 311 or check the City of Winnipeg Assessment and Taxation website for information about 560 Cote Street. [ 25 ] Cst.

Flock concluded he was satisfied that 560 Cote Street was one residence with separate living areas but not separate units and when put to him on cross-examination he specifically denied having actual knowledge of the fact that there were two separate units within 560 Cote Street. [ 26 ] In addition to the cross-examination of Cst.

Flock, the applicants filed three exhibits on the voir dire . [ 27 ] Exhibit 1 is a Google street view photo of the front of 560 Cote Street taken in August 2016. [ 28 ] Exhibit 2 is a close up Google street view photo of the front of 560 Cote Street, showing two mailboxes beside the front entrance of the house. [ 29 ] While Exhibit 2 is labeled 563 Cote, it is agreed that the photo is of 560 Cote Street.

There is no image capture date on the photo but it appears to be taken at the same time as Exhibit 1. [ 30 ] Exhibit 3 is the affidavit of Brendon Yarish dated January 17, 2019. [ 31 ] The affidavit indicates that in January of 2019, Mr. Yarish performed an on line search of the address 560 Cote Street on the Assessment and Taxation page of the City of Winnipeg website. The search indicated that the residence is zoned R2 as a two family residence. [ 32 ] The affidavit further indicates that in January 2019 Mr.

Yarish called 311 and was advised that 560 Cote is comprised of two units, (unit 1 and unit 2) with unit 1 listed as the parent property. [ 33 ] The Crown does not take issue with this being the case at the time the ITO was submitted and the warrant granted. Sub facial validity

[ 34 ] The applicants argue that the information contained in the ITO did not reflect what Cst. Flock actually knew about the applicants’ living situation within 560 Cote Street, and that this was a deliberate material non-disclosure, done for the purpose of obtaining a search warrant for the whole residence instead of just the upper suite. [ 35 ] They suggest it is not credible that Cst. Flock did not note two mailboxes at the front of the residence while doing surveillance.

They further point to the fact that he left the word “suite” out of his reference to the July 2015 occurrence report in the ITO and suggest that it was deliberately done. [ 36 ] In the alternative, they argue the information in the ITO does not reflect what Cst. Flock ought to have known had he done a proper investigation of the address, which they argue he was required to do. [ 37 ] The applicants submit that based on the information known to Cst.

Flock, it should have been obvious to him that further investigation into the nature of 560 Cote Street was required, and that he knew of ways to easily do so and chose not to. [ 38 ] The presence of two mailboxes on the front on the residence and the use of the word “suite” in the July 2015 occurrence report are again cited as examples of evidence that should have alerted Cst.

Flock that further investigation was required. [ 39 ] The applicants submit that whether deliberate or negligent, had the accurate information been before the issuing judge the search warrant for the entirety of 560 Cote Street could not have issued. [ 40 ] The Crown argues that Cst.

Flock was a credible witness and submits there is no evidence that the officer deliberately mislead the authorizing Judge by withholding his knowledge about the existence of separate suites within 560 Cote Street. [ 41 ] Further, the Crown argues that from the information gathered from the CI, the various database searches, and the surveillance of the house, there was nothing that should have alerted Cst. Flock to investigate further to see if there were separate and distinct living units within the house. The extent of his investigation was reasonable in all the circumstances.

Ruling on Sub facial validity [ 42 ] In the course of Cst. Flock’s evidence, and throughout counsels’ submissions much was made about the meaning of the word “suite”. It is a word used in various ways with differing meanings. [ 43 ] Generally speaking, “suite” refers to a living area that is separate from, but attached to other living areas. For example, it can be used to describe an apartment in a multi-unit building, or to describe an area within a building designated for use by a particular person, such as a “granny suite”.

It does not necessarily mean a private locked unit that is not accessible to others. [ 44 ] Except for the presence of two mailboxes, 560 Cote Street, as depicted in Exhibits 1 and 2, appears from the outside to be an ordinary single-family structure. [ 45 ] Assuming they were still there at the time of this investigation, is it possible that Cst.

Flock did not see two mailboxes on the front of the residence? [ 46 ] Given the brief opportunity to take in details of the residence when he initially drove by and the position from which he conducted his surveillance, I am satisfied that it is possible that he did not see the mailboxes and I accept his evidence on this point. [ 47 ] It is with this background that Cst. Flock reviewed the July 2015 incident report where words “upper suite” were used.

I am satisfied that in this context, the use of the word “suite” would not necessarily lead one to conclude that the house contained separate distinct living units. [ 48 ] Cst. Flock’s purpose in referencing that report in the ITO was to corroborate the information from the CI and tie Ms. Claeys to the residence. While it would have been preferable to put the entirety of the report into the ITO verbatim, I am satisfied that the omission of the word “suite” was not done to deliberately mislead the authorizing Judge. [ 49 ] I am satisfied that Cst.

Flock did not know there were two separate living units within the house at 560 Cote Street. [ 50 ] I am also satisfied, based on the checks made to corroborate the CI information and the surveillance conducted, Cst.

Flock had no reason to suspect there were two separate living units within 560 Cote Street, and no reason to make further inquiries in this regard. [ 51 ] The purpose of cross-examining the affiant on a sub facial challenge is to establish the existence of fraud, misleading evidence or material non-disclosure, for the consideration of the reviewing judge in determining whether there continues to be any basis for the decision of the authorizing Judge. [ 52 ] Based on the evidence of Cst.

Flock which I accept, and the information known to him at the time he applied for the warrant, I am satisfied there was no fraud, non-disclosure, error, omission or misleading information in the ITO relating to the address to be searched. [ 53 ] The Crown concedes information about the applicants’ prior arrests at paragraphs 7 and 8 of the ITO should be excised. Those will be the only excisions.

Facial Validity [ 54 ] The applicants contend reasonable and probable grounds to issue the warrant in this case did not exist and that the warrant should therefore be quashed. [ 55 ] The law applicable to a review of the facial validity of a search warrant was recently summarized by the Manitoba Court of

Appeal in R. v. Pilbeam, 2018 MBCA 128. [56] There is a presumption of validity as to a search warrant and the sworn information supporting it. The accused bears the burdenof demonstrating on balance, that the ITO is insufficient to establish reasonable grounds. (para.6) [57] Warrant review involves a contextual analysis.

The reviewing Judge is to assess the facts and the reasonable inferencesavailable by taking a practical, non-technical and common sense assessment of the totality of the circumstances. (para.7) [58] The reviewing Judge’s limited responsibility is to decide whether the record before the authorizing Judge, as corrected andamplified on the review, provides any basis upon which the authorizing Judge could be satisfied that the relevant statutory preconditionsexisted. (para.8) [59] A search warrant is valid where the totality of the circumstances set out in the ITO discloses reasonable grounds to believe thatevidence of the offence will be found at the specified time and place. (para.10) [60] Reasonable grounds is something more than mere suspicion but something less than a prima facie case, proof on a balance ofprobabilities or proof required for conviction. (para.11) [61] Where, as in this case the sufficiency of information provided by a confidential informant is at issue an evaluation of thereasonableness of the grounds requires consideration of whether the information predicting the commission of a criminal offence wascompelling, whether the source of the tip is credible and whether the information provided has been corroborated by the police. (R. v.Debot, (SCC), [1989] 2 S.C.R. 1140 at page 1168) [62] The applicants submit that the grounds in the ITO are deficient in relation to the information provided about the credibility andreliability of the CI.

They concede however that the information provided by the CI was compelling and was sufficiently corroboratedby the police. [63] They argue that the information provided by the affiant about the CI’s criminal record and history as an informant were notsufficient to allow the issuing Judge to conclude the information provided was credible and reliable. [64] The only information provided in the ITO about the CI’s criminal history was that the informant had never been charged withperjury or public mischief.

The applicants contend that information regarding convictions for breaching court orders and offences ofdishonesty should also have been included. [65] As for the history as an informant, the applicants argue the affiant has knowledge of the number of times information has beenprovided by the CI and the number of times it has proven reliable and that this evidence is necessary for the issuing Judge to evaluate thecredibility and reliability of the information provided. [66] The applicants submit in the absence of evidence on these two issues the issuing Judge had no basis to conclude the informationprovided by the CI was credible and reliable. [67] In response, the Crown points to the information that was provided and argues it was sufficient to support the inference that theinformant’s information was credible and reliable. [68] Further, the Crown argues that if a deficiency in the credibility requirement exists, it can be compensated for by the strengths ofthe compelling nature of the information and the extent to which it was corroborated, both of which have been conceded. [69] In this case the affiant provides information in the ITO that “X” is a registered confidential informant, who has providedinformation in the past that has proven to be reliable and has led to arrests. [70] Cst.

Flock included information about the CI’s life that provided context as to why he or she would be in a position to have theinformation given. [71] The ITO included information that the CI had never been charged with perjury or public mischief. [72] The information provided by the CI to Cst.

Flock was found to be reliable through corroboration and importantly none of theinformation provided by “X” was found to be false or misleading. [73] Finally, the fact that the CI requested monetary compensation for the information was disclosed. [74] Providing extensive information about an informant’s criminal record or lack thereof in an ITO can serve to identify theinformant and must be done with care. In this case, the information provided by Cst.

Flock was minimal but did convey to the issuingJudge that “X” had never been convicted of lying to the police or lying under oath. [75] A thorough review of an individual’s past performance as an informant can provide evidence of reliability but does notnecessarily do so. The reliability of past information given is difficult to assess solely by looking at whether it resulted in arrest orconviction. There are many reasons why it may not do so that have nothing to do with whether the information initially given wasreliable. [76] In this case, the affiant Cst.

Flock indicated that “X” had given reliable information in the past that resulted in arrests. Whilethere is no doubt further detail would have been helpful, including it in the ITO may also have served to identify the informant. Theaffiant must balance that risk with the limited value of the information to the issuing Judge when deciding whether or not to include it. Conclusion

[ 77 ] I am satisfied that any deficiency in the evidence provided by Cst. Flock on the issue of credibility and reliability is countered by the compelling nature of the information provided and the corroboration provided by the police investigation. [ 78 ] I am satisfied that the ITO provided reasonable and probable grounds on which the issuing Judge could have granted the warrant. [ 79 ] The applicants have not established on a balance of probabilities that the warrant could not have issued. Their application to quash the warrant is therefore dismissed. “Original signed by” JUDGE TRACEY M. LORD, A.C.J.