r v. Southam Inc., 2022 QCCQ 3002

Phinn c. R. 2022 QCCQ 3002 COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OF MONTREALCriminal and Penal DivisionNo: 500-01-218979-216

(001) DATE: May 31, 2022 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. JERMANE TIRANDO PHINNAPPLICANT, ACCUSEDvs. HER MAJESTY THE QUEENRESPONDENT, PROSECUTOR JUDGMENT ON AN APPLICATION TO EXCLUDE EVIDENCE Sections 8 and 24 (2) of the Canadian Charter of Rights and Freedoms [1] Mr. Phinn is facing three charges of possession of a

Schedule I drug for the purposes of trafficking between May 4 andMay 7, 2021 as well as 3 counts related to his possession of a 9 mm firearm, on May 7, 2021. [2] Mr. Phinn seeks the exclusion of evidence obtained pursuant to three judicial authorizations granted on May 7, 2021. He arguesthat the searches breached

section 8 of the Canadian Charter of Rights and Freedoms (the Charter) which protects against unreasonablesearch and seizure and that all evidence so obtained should be excluded pursuant to section 24 (2). [3] A complete list of the evidence seized and sought to be excluded is found in exhibits R-7 (the evidence found in his vehicle),including a firearm and a magazine with six bullets, and R-8 (the evidence found at his home) including ammunition for a 9mm firearm,drugs (10.97 g. of crack and 74.28 g of cocaine) and several items related to drug trafficking.

THE AUTHORIZATIONS AT ISSUE [4] A justice of the peace issued the three warrants in question, all on May 7, 2021. The first is a general production order pursuant tosection 487.014 of the Criminal Code, while the other two are search warrants pursuant to s. 11 (1) of the Controlled Drugs andSubstances Act (CDSA), one for Mr. Phinn’s vehicle, and one for his home. THE LAW [5] Whereas a search warrant is presumptively valid,[1] at trial, an accused may ask a judge to review the warrant with a view toassessing the sufficiency of the grounds on which it was issued.

The burden to establish insufficient grounds to issue the authorizationrests on the applicant, on a balance of probabilities.[2] The law governing the requirements of reasonable and probable groundssufficient to authorize a search is well settled as is the role of a judge reviewing such judicial authorizations. [6] The Supreme Court of Canada sets out these principles in R. c.

Campbell[3] as follows: In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide “reasonable and probable grounds,established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”(Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is “not whether thereviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit anissuing justice to authorize the warrant” (Morelli, at para. 40).

In conducting this analysis, the reviewing court must exclude erroneousinformation from the ITO and may have reference to material properly received as “amplification” evidence (R. v. Araujo, 2000 SCC 65,[2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41). [emphasis added] [7] In the recent case of Casale v. R,[4] the Québec Court of Appeal summarized the guiding principles as follows: [7] In R. v.

Morelli, 2010 SCC 8, Fish J., speaking for the majority, reiterated the proper test when reviewing the sufficiency of awarrant, as being “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could

have issued”.

He added that the question is “not whether the reviewing court would itself have issued the warrant, but whether there wassufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place”. [8] To establish reasonable grounds for a search, the appropriate standard is “reasonable probability” or “reasonable belief”: R. v.Debot, (SCC), [1989] 2 S.C.R. 1140. [9] In other words, the reviewing judge must not substitute his or her view for that of the authorizing judge.

If, based on the recordwhich was before the authorizing judge, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere. […] [our emphasis] [8] Where the police rely on an informer’s tip provided in furtherance of their investigation, as part of the Information to Obtain(ITO), the reliability of such information must first be assessed by the issuing judge who must determine if it is compelling, credible andcorroborated.[5] The Supreme Court of Canada added in Garofoli[6] that a tip from an informer, by itself, is insufficient to establishreasonable and probable grounds to justify a search unless its reliability is established.

Reliability of the tip must be assessed by recourseto "the totality of the circumstances” which include such factors as: (

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.[7] [9] The results obtained after the search are irrelevant to the assessment of the reliability of the information provided. [10] In R. v.

Sadikov,[8] Watt, J.A. provides further guidance regarding the sufficiency of an ITO to meet the standard of reasonable andprobable grounds to believe that an offense has been committed and that evidence of it would be found at the specific time and place ofthe search: The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyonda reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v.

Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establishreasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposedsearch: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in theITO, the warrant could be issued: R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont.

C.A.), at para. 22 [emphasis added] QUESTIONS AT ISSUE [11] The first question at issue is the facial validity of the authorizations, and specifically whether the facts in each ITO were sufficientto lead the issuing judge to grant each of the three authorizations. [12] If they were insufficient, the searches are akin to warrantless searches, in violation of Mr. Phinn’s

section 8 Charter rights, leadingthe Court to then consider the second question, which is whether the evidence so obtained should be excluded pursuant to section 24 (2)of the Charter. [13] Mr. Phinn submits that the grounds supporting the judicial authorizations were insufficient, specifically because of the absence ofany link between an individual targeted by the police, referred to as “ICE” in the ITO, and Mr. Phinn himself, and also because theinformation received from unnamed informers was not sufficiently reliable.

In addition, he argues that the ITO disclosed no linkwhatsoever between the evidence sought and the locations searched namely, Mr. Phinn’s car (a black Nissan Sentra, licence plate [...])and his residence (635 St-Maurice, # 1507, Montreal). He submits that the evidence obtained pursuant to these breaches of hisconstitutional rights must be excluded from evidence at his trial. ANALYSIS [14] Because Mr.

Phinn contests the facial validity of the warrants, this Court’s task is to determine whether the issuing judge hadsufficient grounds to grant the authorizations based on the contents of ITOs, taking into consideration the totality of the circumstances,interpreted contextually.[9] These can properly include “the opinion of the author of the ITO about the practices of drug dealers inconnection with the storage of drugs and firearms and assorted paraphernalia”.[10] [15] The following is a

summary of the information which was presented to the issuing judge. [16] In February 2020, information was provided by two informers regarding the sale of drugs by Henri Primeau from an address at3891 LaSalle Boulevard in Verdun, which information was confirmed by physical police surveillance. [17] On October 2, 2020, two warrants were obtained to search Apartments 1 and 3 at 3891 LaSalle Boulevard in Verdun. Thesesearches led to the seizure of money, accounting documents, a scale, cocaine, crack cocaine and methamphetamines.

That same day,Henri Primeau was arrested for possession of drugs for the purposes of trafficking. Due to his health problems he was not detained. [18] In February 2021, the police were informed that a person named “Henri” matching Henri Primeau’s description was dealing drugsand that one of his customers had died from a cocaine overdose. The affiant of the ITO also received information from an anonymoussource on April 28, 2021, that a victim of an overdose had also received his or her drugs from Henri Primeau at 3891 LaSalle Boulevard.

[ 19 ] An anonymous source “C”, gave precise and contemporaneous information to the police regarding Henri Primeau’s involvement in drug trafficking in 2021. According to “C”, Henri Primeau sold crack cocaine, heroin, fentanyl, speed, Xanax and marijuana from his home. The address given for Mr.

Primeau (3891 LaSalle Boulevard in Verdun) was confirmed as was his telephone number. [ 20 ] This same unnamed source stated that an individual named “ICE” was Henri Primeau’s supplier. “ICE” is described as being a black man, 30 to 35 years old, measuring 1 meter 73 and weighing 200 to 220 pounds, who is flashy, always wearing jewelry and sunglasses. [ 21 ] Source “D” is registered with the SPVM and is considered worthy of credit by the police force. He has given several tips in the past that have proven to be reliable and well-founded leading to police investigations.

According to “D”, Corey Carby-Douglas sells crack in Verdun and usually carries a firearm. Police reports confirm that he was arrested in another event for possession of a firearm. [ 22 ] A police report regarding an incident on April 6, 2021 notes that Corey Carby-Douglas is seen entering and leaving 718 Third Avenue in Verdun with an individual described as a black man, 25 years old, wearing a black bandanna on his head, glasses with gold contour, dressed in black, carrying a “man purse”, and wearing black nitrile gloves.

As noted by the affiant, this physical description could match “C”’s description of “ICE”. [ 23 ] Based on surveillance reports, on April 7, 2021 Corey Carby-Douglas was seen at 3891 LaSalle Boulevard in Verdun where he entered and stayed for six minutes. [ 24 ] On April 8, 2021 police surveillance observed Henri Primeau at 3891 LaSalle Boulevard, and saw him answering the door at that address six times. Between 20h13 and 21h15, nine individuals were seen at that address, entering and leaving quickly (within three minutes or less).

The affiant confirms that the number and length of these visits are suggestive of drug transactions. [ 25 ] On April 27, 2021, between 12h14 and 14h30, six individuals were seen entering and leaving that address within a few minutes of each other, one of them is then seen putting something in a crack pipe and smoking it on the premises. [ 26 ] On April 28, 2021, between 9h50 and 11h47, 11 individuals are seen entering and quickly leaving 3891 La Salle Boulevard. [11] One of them is observed going from there to sit on the steps of another building where is leans over and sifts a substance that he proceeds to sniff.

A few minutes later, four other individuals are seen doing quick “in and outs” at that same address. [ 27 ] Police officers on surveillance also see an unknown black male measuring 5 foot 11 wearing a Covid mask, gold-framed sunglasses, and a black “do-rag” enter 3891 La Salle Boulevard in Verdun. He is driving a black Nissan Sentra [...].

The affiant notes that the physical description of this unknown male is similar to that of the unknown male who accompanied Corey Carby-Douglas (par. 22 above), which description could correspond to “ICE”. [ 28 ] On April 29, 2021 between 9h10 and 10h10 five individuals are seen quickly entering and leaving 3891 [12] LaSalle Boulevard in Verdun.

On that same date, an unidentified male driving the black Nissan Sentra [...] is seen leaving 1222 rue des Bassins, Apartment 702 and going back to that address three times where he stays for approximately half an hour. [ 29 ] The same unknown male is also seen doing two quick “in and outs” at 3891 LaSalle Boulevard in Verdun. From there he goes to 718 Third Avenue in Verdun.

Between his first and second entry at 3891 LaSalle Boulevard in Verdun, an undercover officer purchased drugs from Henri Primeau at 3891 LaSalle Boulevard in Verdun. [ 30 ] The same unknown male drives the black Nissan Sentra to Bridge Street, where he meets an individual carrying a thin blue bag measuring 8”x 10”. The individual enters the Nissan, passenger side. When he exits the vehicle, he is no longer carrying the blue bag. From there, the unknown male drives the Nissan to 718 Third Avenue in Verdun.

The affiant notes that this unknown male might be the same as the unknown male followed the day before, driving the same black Nissan Sentra, and that he could match the description given for “ICE” (“ pouvant correspondre à “ICE” ). [ 31 ] On April 30, 2021 an unidentified male is seen driving the same Nissan Sentra and exiting 1222 rue des Bassins in Montréal. He is seen doing a quick in and out at 3891 LaSalle Boulevard in Verdun. Some twenty minutes later, an undercover officer completes a drug transaction at that address, with a different unknown male who refers to “Henri”.

The affiant notes that the unidentified male driving the Nissan could correspond to the same unidentified male described in the surveillance reports of April 28 and 29 th and could correspond to “ICE”. [ 32 ] On May 4, 2021, police officers discover that the person occupying 1222 rue des Bassins, Apartment 702 has left the premises, as the lease ended on May 1, 2021. Ninety nine rocks of crack cocaine were left in the bathroom. This is the address where the unidentified male referred to as “ICE” had been seen entering and exiting during the police surveillance on April 29 and 30 th , 2021.

The affiant also notes that this address was targeted as being the address of the unidentified male nicknamed “ICE”. [ 33 ] On May 6, 2021 between 9:25 AM and 1:15 PM, 27 individuals are seen doing quick “in and outs” at 3891 LaSalle Boulevard in Verdun. Henri Primeau is seen entering and exiting the back door of that address.

The unidentified male referred to as “ICE” is seen entering and exiting 3891 LaSalle Boulevard and going to 718 Third Avenue in Verdun. (The same address observed in paragraphs 22, 29 and 30 above). [ 34 ] The man nicknamed “ICE” is also seen driving the Nissan Sentra and later that evening, entering 635 St-Maurice in Montréal, through the basement and going to the 15 th floor. [ 35 ] The clerk at the reception at 635 St-Maurice in Montréal informs Detective Sgt.

Chartrand that it is impossible to access the higher floors without an access chip (“puce”), which grants access to the garage, the staircase and the elevators. Furthermore, each chip is associated with a specific floor and grants access only to that floor.

[ 36 ] The affiant of the ITO, Detective Sgt. Hurteau, states that given all of the facts collated, he has reasonable grounds to believe that Henri Primeau, Corey Carby-Douglas and an unidentified male nicknamed “ICE” are involved in drug trafficking. The general production order (pursuant to s. 4 8 7.014 Cr C .) [13] [ 37 ] The first authorization at issue is a general production order, pursuant to

section 487.014 of the Criminal Code which requires that there be reasonable grounds to believe that a criminal offence has been committed and that the information sought will provide evidence concerning the commission of the offence. [ 38 ] This authorization [14] states that there are reasonable grounds to believe that drug trafficking or possession of drugs for the purposes of trafficking pursuant to the CDSA has been or will be committed and it allows Detective Sgt.

Hurteau to obtain information from “ Antidote service administratif inc .” regarding the identity of the occupant or owner linked to the electronic chip that was used to enter the garage and to reach the 15 th floor of 635 St-Maurice in Montréal between 22h06 and 22h09 on May 6, 2021. [ 39 ] The production order requested seeks to identify the driver of the black Nissan Sentra in order to gather evidence to prove that Henri Primeau, Cory Carby-Douglas and an unidentified male nicknamed “ICE”, are involved in drug trafficking.

The ITO [15] supports the conclusion that the identity of the driver of the Nissan Sentra can be obtained by access to information from the electronic chip that was used to enter the garage and to go to the 15 th floor of 635 St-Maurice in Montréal between 22h00 and 22h20 on May 6, 2021 . [ 40 ] There is no merit to the submission that there was an insufficient description of the offenses alleged under investigation or an absence of nexus between what was sought in this production order and the offenses being investigated.

Quite simply, the ITO provides ample confirmation that Henri Primeau, previously arrested for drug trafficking in February 2020, was still quite active in drug trafficking in April and May 2021. The participation of Mr. Corey Carby-Douglas and an unidentified individual named “ICE” in this drug trafficking is clearly documented in the ITO, through anonymous information provided and police surveillance.

There is no lack of credible and reliable information sufficient to support reasonable and probable grounds to believe that these three individuals were actively involved in drug trafficking. [ 41 ] The applicant has not established that the production order was not properly issued.

The warrant to search the car (pursuant to s. 11 (1) CDSA ) [16] [ 42 ] The ITO in support of the authorization to search the black Nissan Sentra includes the same investigative information as the ITO for the production order. [17] Contrary to the submissions of the applicant, the description of the offenses is sufficient and there is no lack of a nexus between the alleged offenses and the evidence sought. [ 43 ] As to the sufficient connection between the search for evidence related to drug trafficking and the black Nissan Sentra, the ITO provides many instances of that vehicle being used in the course of apparent drug trafficking operations between April 28, 2021 and May 6 2021. [ 44 ] For example, this is the vehicle used doing quick “in and outs” at 3891 LaSalle Boulevard, the address of Henri Primeau, which was previously confirmed to be used for drug trafficking during a police investigation in February 2020.

During the week of surveillance summarized in the ITOs, between April 27 and May 6 2021, it is also the address where over 50 individuals are seen entering and leaving quickly - behaviour, which according to the police officer’s experience is consistent with drug trafficking activities. In two such instances, they are seen immediately afterwards smoking crack or sniffing what seems to be drugs. It is also the address where undercover officers are directly involved in drug transactions, on April 29, 2021 and May 5, 2021.

The warrant to search the residence (pursuant to s. 11 (1) CDSA ) [18] [ 45 ] Once the police executed the production order referred to above, the electronic chip allowed them to identify the individual who drove the black Nissan Sentra into the garage at 635 St-Maurice as Jermane Tirando Phinn, residing at 635 St-Maurice, Apartment 1507. This provided the nexus between “ICE” and Mr. Phinn since several surveillance entries mentioned “ICE” as being the driver of that same black Nissan Sentra. [19] In addition, Mr.

Phinn’s Ontario driver’s license photograph resembles the unidentified male referred to as “ICE”. [20] Thus, Mr. Phinn’s argument alleging the absence of any link between him and “ICE” is without merit. [ 46 ] This new information allowed the issuing judge to read the summaries of the surveillance reports in the final ITO (to search the residence) with this in mind, thus linking Mr. Phinn with the unidentified male referred to as “ICE”. [ 47 ] Viewing the ITO in context, and as a whole, there is an abundance of information, beginning with an unnamed source and confirmed through police surveillance, that Mr.

Phinn, referred to as “ICE” was actively involved in drug trafficking. [ 48 ] The question remains whether the ITO disclosed a connection between this alleged criminal activity and the location to be searched. Specifically, Mr. Phinn suggests that even if there were reasonable and probable grounds linking him to drug trafficking, the ITO does not provide any grounds to believe that the evidence sought (drugs, money, accounting documents, the scale, material for bagging or cellular telephone for use in drug trafficking) would be found in his apartment. [ 49 ] Indeed, in order to authorize a search of Mr.

Phinn’s apartment, the ITO had to establish the reasonable probability that the evidence in question would be found there . A simple possibility is not sufficient and it is similarly insufficient to assume that simply because he was involved in drug trafficking, evidence of that criminal activity would be found in his home. [21] [ 50 ] Mr. Phinn is correct to point out that none of the surveillance and none of the drug transactions took place at this address. His

apartment on St-Maurice Street was unknown to the police until May 6, 2021, when the black Nissan Sentra under surveillance was seen entering that building. [ 51 ] A similar question assessing the connection between an accused involved in drug trafficking and his home as a place to be searched was recently addressed by the Québec Court of Appeal in R. v. Simon. [22] In that case, the ITO provided information from an informer, corroborated by police surveillance, linking the accused to heroin trafficking. The Court confirmed the validity of the search warrant for the accused’s residence.

In that case, the ITO disclosed that the accused left his residence on multiple occasions and went directly from there to very brief meetings held mainly in his vehicle and usually in parking lots (suggesting his involvement in drug trafficking). The Court added, however, that simply identifying a drug trafficker’s residence, where he begins and ends his day, would be insufficient to provide reasonable and probable grounds for a warrant for his residence. [23] [ 52 ] The prosecution suggests that Mr.

Phinn’s involvement in drug trafficking on May 6, 2021 and then driving his car to his residence, provides sufficient reasonable and probable grounds to search his home. The Court does not agree. The mere fact that Mr. Phinn is observed driving into his garage (albeit in the car used to traffic drugs) is insufficient to conclude, based on reasonable probable grounds, that he kept drugs or paraphernalia related to drug trafficking activity at his home. This is precisely the type of speculative argument that the Court of Appeal cautions against in Simon c. R. [24] and in R. c .

Audigé . [25] [ 53 ] Nevertheless, a full review of the ITO provides a constellation of objective facts that could support the issuing judge’s conclusion of the existence of reasonable grounds to believe that evidence relating to drug trafficking would be found in Mr. Phinn’s apartment. They are summarized as follows: • Mr. Phinn, identified as the driver of the black Nissan Sentra on May 7 2021, is seen repeatedly driving to, entering and exiting 3891 LaSalle Boulevard where drug trafficking was clearly taking place.

The ITO provides sufficient grounds to believe that he was actively involved in drug trafficking between April 29, 2021 and May 6, 2021. • The affiant notes that 1222 rue des Bassins, Apartment 702 was the address targeted as being that of the unidentified male nicknamed “ICE”. On April 29, 2021, he is observed entering the apartment at 20h00, which corresponds to the start of the Covid- imposed curfew in place at that time. • On April 29, 2021, the driver of the black Nissan, (confirmed as Mr.

Phinn on May 7 2021 following the execution of the production order) is seen at that same address, 1222 rue des Bassins, and is then observed in three different instances, returning to that same address and staying there for about half an hour. • On May 4, 2021 a police officer went to 1222 rue des Bassins, Apartment 702 where he was told by someone overseeing the building that the tenant left the apartment as was required, according to the lease which ended on May 1, 2021.

The police officer was also informed that on May 2, 2021, it was discovered that the prior tenant left behind 99 rocks of crack cocaine on the bathroom counter. [ 54 ] The combination of these facts could allow the issuing judge to find that the police had reasonable and probable grounds to believe that “ICE” (or Mr. Phinn), kept drugs at his residence. Given the information that on May 7, 2021 Mr.

Phinn, resided at 635 St-Maurice Street, Apartment 1507, the ITO provided sufficient grounds allowing the issuing judge to authorize a search warrant for that location. [ 55 ] In conclusion, the applicant has failed to establish, for any of the three authorizations, that the ITOs lacked sufficient credible and reliable information establishing reasonable and probable grounds to support them. It is thus unnecessary to pursue an analysis pursuant to section 24(2) of the Charter . FOR THESE REASONS, THE COURT: DISMISSES THE APPLICATION to exclude the evidence obtained in Mr.

Phinn’s car and his residence pursuant to judicial authorizations. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me. Ouissam Akhrif For the Accused/ Applicant Me. Eric Poudrier For the Prosecution/ Respondent

Date of hearing: April 21, 2022 [2] R. v. O’Reilly , 2017 QCCA 1283 , par. 120 ; R. c. Campbell , 2011 CSC 32 , par. 14 ; ( Quebec ( Attorney General) v. Laroche , 2002 SCC 72 , par. 68 ; R. v. Morelli , 2010 SCC 8 , par. 131 .