R. v. Desilva, 2022 MBPC 51

CITATION: R. v. Desilva , 2022 MBPC 51 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) D. Manning ) for the Crown ) and ) ) ) Ayden Desilva ) E. Roitenberg ) for the Accused ) ) ) ) ) Reasons for Decision ) Delivered: October 24, 2022 Decision on Validity of Search Warrant FREDERICKSON P.J. [ 1 ] A confidential informant told their handler at the Winnipeg Police Service (the WPS) that Ayden Desilva was trafficking fentanyl in Winnipeg. This information formed the basis of an Information to Obtain a Search Warrant (the ITO). The search warrant was granted and executed, and Mr.

Desilva now stands charged with possession for the purpose of trafficking and possession of property obtained by crime. In support of these charges, the Crown seeks to tender the evidence obtained when the search warrant was executed. [ 2 ] Mr. Desilva says that the information in the ITO did not disclose reasonable grounds to believe that an offence was committed, nor did it disclose that evidence of that offence would be found at 1301-311 Hargrave Street. [ 3 ] He argues that because the ITO lacked reasonable grounds to believe, the search was warrantless and in violation of his

section 8 Charter rights. As a result, the evidence seized should be excluded pursuant to s. 24(2) of the Charter . [ 4 ] The issue for me to determine is whether the search warrant could have been granted by the authorizing justice. The ITO [ 5 ] Mr. Desilva is challenging the facial validity of the search warrant. The ITO, sworn by Constable Verspeek of the WPS on February 12, 2021 was the basis for the search warrant which was granted and executed the following day.

It was filed as an exhibit, without any amplification. [ 6 ] The central assertions in the ITO come from a registered confidential informant referred to as Source A. The information provided by Source A is contained in paragraphs 21 - 29 of Appendix A of the ITO. [ 7 ] Source A asserts that: (

a) Mr. Desilva travelled to Winnipeg from British Columbia and has been staying in short-term rental accommodations for the past few weeks; (

b) He keeps moving and tries to keep his exact location known to only a few people;

(

c) On January 28, 2021, Mr. Desilva was staying at 540 Agnes Street, where he had been staying for a few days traffickingfentanyl; and (

d) Around February 1, 2021, Mr. Desilva moved to an unknown floor at 311 Hargrave Street, and was dealing fentanyl in theimmediate area. [8] Source A says they had personal knowledge of two fentanyl transactions conducted by Mr. Desilva in the area of 311 HargraveStreet in the five days preceding the writing of the search warrant, with the most recent transaction occurring within the previous 48hours. [9] When shown a photograph taken by the Abbotsford Police Department, Source A confirmed that the individual in thephotograph was Mr. Desilva. [10] In the ITO, Constable Verspeek sets out Source A’s background, stating that: (

a) Source A is a tested, registered, confidential informant who has provided information to Constable Younka of the WPS forthe past six months; (

b) The information provided by Source A to Constable Younka has been found to be accurate through observations and policedatabase inquiries; (

c) Past information provided by Source A has led to the seizure of fentanyl, methamphetamine and proceeds of crime; (

d) Source A has never been charged with fraud, perjury or public mischief; (

e) Source A fears that if their involvement becomes known, they would face retribution through physical violence; and (

f) Source A has vast knowledge of the drug culture in the City of Winnipeg and has been involved in the drug subculture forover five years. [11] The ITO also outlines the steps taken by the WPS as part of their investigation. Officers conducted surveillance at 540 AgnesStreet on February 1, 2021, and surveillance at 1301-311 Hargrave Street on February 4 and 11, 2021. They observed Mr. Desilva atthese locations on these dates. [12] In addition, police records checks were conducted by Constable Younka.

These checks revealed that in April of 2015, Mr.Desilva gave an address of Vancouver, British Columbia during the course of an interview with the WPS. In November 2018 he, alongwith three other individuals, was a suspect in what the Abbotsford Police Department believed to be a gang-related kidnapping. Chargesin relation to this matter were stayed. The Law [13] The law and legal principles as it relates to conducting a Garofoli review (R v. Garofoli, (SCC), [1990] 2S.C.R. 1421) was not in dispute. [14] The Manitoba Court of Appeal in R v. Pilbeam 2018 MBCA 128 sets out an instructive

summary. In brief: (

a) A search warrant and the sworn ITO supporting it are presumed to be valid, with the onus on the accused to demonstrate, ona balance of probabilities, that it is insufficient; (

b) In reviewing the warrant, its meaning should be considered as a whole, based on the totality of the circumstances. This involves acontextual, practical and common-sense assessment, not a piecemeal approach of assessing individual items of evidence out of context; (

c) The reviewing judge’s limited responsibility is to decide whether the record provides any basis upon which the authorizing judgeor justice could conclude that the statutory preconditions existed; (

d) The ITO must disclose reasonable grounds to believe that an offence has been committed and that evidence of that offence will befound at the specified time and place; and (

e) The ‘reasonable grounds to believe’ standard is grounded in objective facts that stand up to independent scrutiny. It is more thanmere suspicion but less than a prima facie case, a balance of probabilities or proof beyond a reasonable doubt. [15] Where the reasonableness of the search rests on the sufficiency of information provided by a confidential informant, theassessment requires consideration of three factors: (

i) Whether the information predicting the commission of an offence was compelling; (ii) Whether the source of the tip was credible; and (iii) Whether the information has been corroborated by police investigation prior to applying for the search warrant. [16] No one of the above three factors is determinative. Weakness in one area can, to an extent, be compensated for by strength inthe other two. Analysis

[ 17 ] To issue the search warrant, the issuing JJP had to be satisfied that the ITO disclosed reasonable grounds to believe that Mr.

Desilva was in possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime in the form of Canadian currency contrary to s. 354(1) of the Criminal Code , and that evidence of these offences would be found at 1301-311 Hargrave Street. [ 18 ] As the reasonable grounds for this belief were based on the use of a confidential informant, it is necessary to consider whether the information provided was compelling, credible and corroborated. Was the information compelling? [ 19 ] Mr.

Desilva argues that the statements of Source A are conclusory, with limited specific detail. He says that the assertions do not specify how or when Source A acquired their knowledge. [ 20 ] Two important considerations in this assessment are the degree of detail of the information and the confidential informant’s source of knowledge. [ 21 ] With one exception, the ITO does not specify Source A’s source of knowledge. There is no indication whether the assertions regarding Mr.

Desilva’s travel to Winnipeg, his use of short-term rentals, and the secrecy regarding his locations was based on Source A’s first hand knowledge or some other source. Similarly, how Source A came to know of Mr. Desilva’s connection to 540 Agnes Street and 311 Hargrave is not specified. [ 22 ] Although Source A identified 311 Hargrave Street as the building Mr. Desilva moved to, they were unable to identify the floor of the building where Mr. Desilva was staying.

Source A does not state that fentanyl or cash from trafficking in fentanyl is located in the Hargrave Street suite. [ 23 ] The assertion that Source A had “personal knowledge” of two fentanyl transactions that Mr. Desilva conducted is also lacking in detail. How they obtained this personal knowledge was not set out, nor were any details of the two transactions. [ 24 ] Source A was described in the ITO as having vast knowledge of the drug culture in Winnipeg and being involved in the drug subculture for the previous five years. With this knowledge and background, they were well positioned to provide details of Mr.

Desilva’s trafficking operation and the transactions of which they had personal knowledge. [ 25 ] The Court recognizes that the greater amount of detail provided by confidential informants potentially increases the risk that their identity may be compromised. However, these concerns can be addressed through a sealing order and redaction, as well as a step six application if required.

And unlike in Pilbeam , where the affiant officer stated in the ITO that they could not confirm or provide certain information as it may identify and endanger the confidential informant, no such concern was raised by the affiant officer in this case. [ 26 ] The overall lack of detail and lack of information as to Source A’s source of knowledge, creates a weakness in the compelling nature of the assertions made by Source A. Was the information credible? [ 27 ] Mr. Desilva argues that Source A is not credible.

He says that the ITO omissions in stating whether Source A has a criminal record and their motivation for providing the information, as well as the lack of detail regarding information provided by Source A in the past, leaves questions as to their credibility. [ 28 ] Source A is not a random or anonymous tipster.

They are a registered confidential informant with the WPS, and had been for six months prior to the writing of the ITO. [ 29 ] Source A had, in the past, provided information to the WPS that led to the seizure of fentanyl, methamphetamine and proceeds of crime. [ 30 ] Source A has not been charged with fraud, perjury or public mischief. These three offences are often listed in search warrants as a testimony to the confidential informant’s honesty.

It is not unusual for there to be no confirmation of whether an informant has a criminal record. [ 31 ] Failure to set out a confidential informer’s motivation is less concerning when dealing with proven informants. As noted in R v. Pilkington 2013 MBQB 79 , referring to R v. Melenchuk [1993] B.C.J. No. 558 (C.A.) , it is not the motive of the informer that is critical, but the reliability of the information provided. [ 32 ] There is no indication in the ITO that Source A lied to their handler about the information provided. Some aspects of what Source A told police were confirmed. For example, Mr.

Desilva was seen by police leaving 540 Agnes Street, and going to 311 Hargrave, both addresses which were given to them by Source A. Source A also confirmed that the person they were referring to was the same person depicted in the Abbotsford Police Service photograph of Ayden Desilva. While none of these facts directly implicate Mr. Desilva in drug trafficking, they do not discredit Source A. [ 33 ] Based on the totality of the circumstances, I am satisfied that the authorizing JJP was in a position to assess the reliability of Source A’s information, and to find the information to be credible.

Was the information corroborated? [ 34 ] Mr. Desilva submits that the police did very little to corroborate the information provided by Source A. Further, it is argued that the investigation conducted was insufficient.

[35] In R v. Debot (SCC), [1989] 2 S.C.R. 1140, Wilson J. states: The police need not confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently tothe anticipated pattern to remove the possibility of innocent coincidence. The level of verification required, however, may be higherwhere the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocentcoincidence is greater. (Emphasis added) [36] This is the case with the information provided by Source A.

Although they were assessed as credible, the level of detailprovided in their assertions was lacking. The level of corroboration required by police is therefore greater. [37] From a big picture perspective, the salient aspects of Source A’s assertions are that Mr. Desilva was in Winnipeg from BritishColumbia. He was dealing fentanyl, using different short term rental properties. [38] Of these salient aspects, there was corroboration that Mr. Desilva was in Winnipeg, likely from British Columbia; he was seenat two addresses named by Source A; and police observed Mr.

Desilva engaging in what appeared to be a drug transaction on February 4,2021. [39] Regarding Mr. Desilva’s ties to British Columbia, based on the computer checks performed by the WPS, along with theirconversation with a member from the Abbotsford Police Department in regard to the November 2018 allegations, an inference can bemade that Mr. Desilva had a connection to British Columbia at a relatively recent time in the past. [40] Whether Mr. Desilva was in fact staying at 540 Agnes Street was partially corroborated.

He was observed leaving that addresson February 1, going to a TD Bank branch, and then to 311 Hargrave Street. The ITO notes he was carrying a “green backpack”, but therelevance of this information is unclear. [41] Whether 540 Agnes Street and 1301-311 Hargrave Street were short term rentals was not corroborated. [42] In

Schedule A to the ITO, Constable Verspeek says that Mr. Desilva is staying at a “short-term rental within the Glass Houselocated at 1301-311 Hargrave Street”. The officer further states that the use of short term rentals by traffickers has been an ongoing issuefor a few years (paragraph 8) and that the Glass House has been a “hotspot for drug trafficking activity” due to the number of short-termrentals within the building (paragraph 32).

However, no computer searches were performed to confirm whether either or both of theaddresses provided by Source A were listed as short term rentals, nor were searches done to determine the registered owners of theseproperties. [43] The Crown argues that reasonable inferences can be drawn. Reasonable inferences are permitted, but the inference must havesome evidentiary basis in the ITO (Pilbeam at paragraph 18).

To infer - based on the police statement in the ITO that drug traffickers useshort term rentals, combined with Source A’s uncorroborated assertions that 540 Agnes and 311 Hargrave are short term rentals – thatMr. Desilva is trafficking fentanyl from a short term rental at 1301-311 Hargrave Street is too large an evidentiary gap. [44] Source A states that Mr. Desilva was trafficking fentanyl at 540 Agnes Street and in the area around 311 Hargrave. Policesurveillance on February 1, 2021 observes Mr.

Desilva leaving 540 Agnes Street in a van, travelling to Portage and Main, attending atthe TD Bank in Winnipeg Square, and going to 1301-311 Hargrave. [45] Police surveillance on February 4, 2021 results in Constable Harron of the WPS observe what he believed to be a drugtransaction. The basis for this belief is not expressed, although implied from the context: Mr. Desilva meets with a male who arrived in ataxi at the back lane of the building. The meeting is under one minute long, following which Mr. Desilva returns to his suite. What roleMr.

Desilva played, whether as purchaser or seller, is not set out. [46] Police surveillance on February 11, 2021 results in the police observing a male attend to 1301-311 Hargrave, stay forapproximately 40 minutes, and leave carrying a “white letter sized envelope” that he then puts in his jacket. This same male returnsapproximately two and one-half hours later, carrying a brown paper bag. When he leaves 1301-311 Hargrave 10 minutes later, he is nolonger carrying the bag. [47] In between the male coming and going, Mr.

Desilva is observed leaving his suite and taking an “Uber” type of service to theTD Bank at Corydon and Wilton, making a bank transaction at the ATM, and then returning back to his suite. [48] Constable Younka says the two meetings that Mr.

Desilva had with the male on February 11 are believed to be drugtransactions, and his trip to the bank may have been a way to rid himself of proceeds of crime. [49] While the incident of February 4, 2021 gives rise to suspicion, the same cannot be said with respect to the surveillance ofFebruary 1 and 11. [50] Much of the information observed on these two dates could be said to be neutral or innocent as referred to in Debot – such asleaving one address and going to another, or attending to a bank twice over the course of two weeks.

Similarly, envelopes and paper bagsare used to contain and carry any number of items that are purely innocuous. Details were not provided by the WPS as to why the eventsof February 11 were believed to be drug transactions; these details could have corroborated Source A’s assertions. [51] This was not an urgent situation. Mr. Desilva was under police surveillance for almost two weeks. There was both time andopportunity for police to undertake further computer checks to corroborate Source A’s information or to more fully set out the basis fortheir statements in the ITO.

Returning to what the court said in Debot, while not every aspect has to be corroborated, a higher level isrequired where fewer details are provided by the confidential informant. This higher level of corroboration was not met in this case.

Totality of the Circumstances [ 52 ] Based on the totality of the circumstances as set out in the ITO, I am not satisfied that the credibility, compellability and corroboration of the information contained in the ITO was sufficient to ground a reasonable belief. [ 53 ] While the threshold of suspicion was reached, the JJP who authorized the issuance of the warrant did not have evidence in the ITO to constitute reasonable grounds to believe that Mr. Desilva was in possession of fentanyl and proceeds of crime, and that such evidence would be found at 1301-311 Hargrave Street. Mr.

Desilva has met his burden of proving that the search warrant and supporting ITO was insufficient. [ 54 ] As a result, the search of 1301-311 Hargrave breached Mr. Desilva’s

section 8 Charter rights. [ 55 ] I will hear arguments from counsel on whether to admit the evidence pursuant to s. 24(2) of the Charter . “Original signed by:” _______________________ FREDERICKSON P.J.