R. v. Liberatore, 2014 NSSC 55

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Liberatore, 2014 NSSC 55 Date: 20140205 Docket: CRH 416236 and CRH 416232 Registry: Halifax Between: Her Majesty the Queen v. Michael Victor Liberatore Judge: The Honourable Justice Felix A.

Cacchione Heard: January 23, 2014, in Halifax, Nova Scotia Oral Decision: February 5, 2014 Written Decision: February 17, 2014 Counsel: Shaun O ’ Leary, for the Crown Patrick Atherton, for the Defence By the Court (Orally): [ 1 ] The accused applicant (the Applicant) is charged with six offences under the Controlled Drugs and Substances Act relating to a variety of drugs together with three weapons offences under the Criminal Code of Canada .

These charges stem from a search under warrant of the Applicant ’ s residence, vehicles and an outbuilding located on a property owned by the Applicant and his mother on April 18, 2012. The search warrant was issued on April 17, 2012.

[2] The Applicant submits that the Information to Obtain (ITO) a search warrant contained erroneous or misleading informationand that once this erroneous or misleading information is excised from the ITO the remaining information is insufficient to establish thereasonable and probable grounds necessary for the issuance of a search warrant. [3] The Applicant also submits that the information from which one could infer that there were firearms on the Applicant’sproperty was not reasonably capable of belief because it was based solely on bare statements by unreliable informants anduncorroborated by police investigation. [4] Simply put, the Applicant’s position is that the ITO lacked reasonable and probable grounds establishing a factual nexusbetween the offences for which the warrant was sought, namely unsafe storage of a firearm (s.86(2) C.C.C.), unauthorized possession ofa firearm (s.91(1) C.C.C.) and possession of a firearm knowing that its possession is unauthorized (s.92(1) C.C.C.) and the places to besearched. [5] No firearms were found during the search.

The search did, however, uncover items which form the basis of the indictmentbefore the Court, including the offence of possessing a prohibited weapon being a knife that opens with centrifugal force. [6] The Applicant argues the search was done in violation of s.8 of the Charter and that the evidence obtained as a result of thesearch should be excluded under s.24(2) of the Charter. [7] The Respondent argues that the search warrant was properly issued in that there was sufficient credible and reliableinformation to permit the issuing justice to authorize the issuance of the warrant. [8] The framework to be used when considering the validity of an ITO was most recently set out by the Supreme Court ofCanada in R. v.

Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253. Justice Fish, speaking for the majority, stated the following atparagraphs 39-41: 39 Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established uponoath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

These distinct and cumulative requirements together form part of the"minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168). 40 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 [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2S.C.R. 992, at para. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, butwhether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds tobelieve that an offence had been committed and that evidence of that offence would be found at the specified time and place. 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace.Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minorerrors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [9] In the present case no amplification evidence was presented. [10] It is important to keep in mind throughout this analysis that the warrant is presumed to be valid and correct.

The question iswhether the Applicant has established that there was no basis for the granting of the authorization to search. [11] The burden to displace the presumption of validity existing with respect to search warrants and the sworn information

supporting the warrant is on the Applicant on a balance of probabilities. [12] The standard of reasonable and probable grounds for search warrants to be consistent with s.8 of the Charter was first set outin the case of Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145 where the court referred to credibly based probability. This has also been referred to as reasonable probability or reasonable belief: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140. [13] Determining whether evidence gives rise to a credibly based probability does not involve breaking down each sentence in theITO into its component parts.

Rather, what the reviewing court must do is identify credible facts that make the decision to authorize asearch reasonable in light of all the circumstances. [14] No matter what term is used, it is essential that the grounds for believing there is evidence in the place to be searched are basedon the operation of reason and not on mere suspicion.

The standard is necessarily qualitative and reasonable people can differ in somecases about whether the authorization should have been granted. [15] Before a justice may issue a search warrant, it is necessary that there be a sworn information which contains such a statementof facts as satisfies the justice that there are reasonable grounds for believing any of the things set out in s.487. It is not sufficient that thejustice should be satisfied, he must be satisfied on reasonable grounds; that is the grounds of belief set out in the information must besuch as would satisfy a reasonable man.

If there are not such grounds shown, the justice cannot be taken to have been satisfied onreasonable grounds: Re: Bell Telephone Company of Canada (1947), (ON SC), 89 C.C.C. 196 at 198. [16] As was stated by the Supreme Court of Canada in Hunter v. Southam the state's interest in detecting and preventing crimebegins to prevail over the individual's interest in being left alone at the point where credibly based probability replaces suspicion. [17] The test to be applied by any reviewing judge was set out by the Supreme Court of Canada in R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paragraph 51 where the court stated: ...In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whetherthere was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. At paragraph 54 the court stated: An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems.

Again, the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, theapplication should have been granted at all by the authorizing judge. [18] In determining whether a warrant has been properly issued I am not entitled to substitute my decision for that of the authorizingjustice. Rather, the question for determination is whether the authorizing justice, acting reasonably and judicially, could have issued thewarrant on the basis of the information provided. [19] In the case of R. v.

Allain, (NB CA), 1998 NBJ No. 436 Justice Drapeau of the New Brunswick Court ofAppeal stated the following at page 4: ...the reviewing court must not assess the substantive quality of the Information by confining itself to the evidence which is explicitly setout in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly statedevidence...

It is settled law that the issuing judge is fully empowered to make all reasonable deductions which flow logically from theevidence stated in the Information, and this power must be factored into the review process. (para.11) ...It is indeed trite law that a warrant should only be issued where there is a credibly based probability that the items to be searched for

are in the place specified in it. Where the Information does not expressly or by implication disclose the required reasonable grounds, theresulting warrant cannot be said to have been properly issued... (para.14) [20] In accordance with the case of R. v. B(JE) (1989), (NS CA), 52 C.C.C. (3d) 224 (NSCA) at 232 this Courthas the authority to sever parts of the ITO containing misleading or false allegations.

After removing the misleading or false allegationsthe Court is left to consider whether there remains sufficient evidence to justify the issuing of the search warrant. [21] In the present case I am excising paragraph 13 of the ITO relating to Constable Milton advising Constable Smith that a .22calibre rifle had been found during a search of the Applicant’s property in November 2005.

This statement is erroneous in that it was anair rifle not a .22 calibre rifle that was found during that search. [22] The following is a chronology of the events leading to the issuance and execution of the search warrant. [23] On April 17, 2012 RCMP Constable Colby Smith appeared before a justice of the peace and swore to the veracity of thecontents of the ITO. [24] The ITO contained information obtained by Constable Smith from other police officers including the source handlers of Sources A, B and C referred to in the ITO, together with the results of Constable Smith’s own investigation. [25] The ITO informed the justice that the Applicant had a criminal record dating from 2000 to 2011 for weapons and drug relatedoffences; that on April 16, 2012 Constable Smith received information from Source A, who had been a source for less than one month.

Source A’s information was based on personal knowledge obtained from conversations and observations of the persons involved.

SourceA’s information was that the Applicant was selling marijuana and cocaine from a shed located on his property on Sprucebrook Lane; thatthe Applicant had three handguns, a .45 calibre pistol, a 9mm. pistol and a .38 calibre revolver which he kept in a locked toolbox in hisshed; that the Applicant had two white trucks, a Chevrolet Silverado and a GMC Sierra Dinali which he parked next to a shed on hisproperty and that the Applicant’s residence on Sprucebrook Lane was under renovation. [26] The justice was also made aware that Source A had a criminal record, associated freely with persons involved in criminalactivity and that Source A’s motivation for providing information was financial. [27] The justice was advised that on April 16, 2012 Constable Smith drove to Sprucebrook Lane and personally observed twowhite trucks matching the description given by Source A parked next to a shed located across the land from a residence, which appearedto be under renovation.

Constable Smith’s investigation confirmed that the properties on which the shed and residence were located wereowned by the Applicant and his mother. Constable Smith also corroborated that one of the two trucks he saw was registered to theApplicant. He could not confirm the registered owner of the second truck because he could not see the licence plate number of thatvehicle. [28] The ITO also referred to a source debriefing report read by Constable Smith on April 17, 2012. This report had beenprepared by Corporal Cameron, the handler of Source B, based on information provided to him by Source B on April 17, 2012.

SourceB advised his handler that the Applicant was selling drugs from a shed on his property; that the Applicant had three guns in his shed; a.45 calibre, a .38 calibre and another unknown handgun; that these guns had been at the Applicant’s place the previous week and that theApplicant had had these guns since before Christmas. The information provided by Source B was based on the Source’s directobservation of and conversations with persons who were the subject of the information.

The ITO advised the justice that informationprovided by Source B on prior occasions had proven to be reliable and resulted in the seizure of contraband. The justice was also awarethat Source B was financially motivated. [29] The information provided by Source C and contained in the ITO was dated. It referred to information provided in 2008regarding the Applicant becoming a big drug dealer and keeping a 9 mm. pistol in the passenger side door of his girlfriend’s vehicle.

Thejustice was also advised that on prior occasions Source C’s information had led to the search and seizure of crime related property ordrugs and the laying of criminal charges. [30] This information was so dated that it would have been of no value to the justice in deciding whether there were reasonable

[30] This information was so dated that it would have been of no value to the justice in deciding whether there were reasonablegrounds to believe that firearms would be found in the location to be searched some four years later.

The Respondent, in oral argument,quite properly indicated that it was not relying on this information in seeking to uphold the validity of the search warrant. [31] In addition to the foregoing the ITO also informed the justice that the Applicant’s residence on Sprucebrook Lane had been thescene of three home invasions in a four year period and that little of value had been taken during these incidents. The issuing justice wasmade aware that during two of these incidents the perpetrators were armed with handguns and that other weapons were used during thethird incident.

As well the justice was informed that during the first incident when only the Applicant’s mother was present she refusedto allow the responding officers to enter one of the rooms in the residence. Those responding officers also noted items in the residencewhich were consistent with a marijuana grow operation and drug trafficking. They were also advised by the Applicant’s mother that hedid not want to speak to the police. [32] The justice also knew that when the second home invasion occurred the Applicant did not immediately call the police butrather he called some friends and his mother.

It was the Applicant’s girlfriend, who had also been present during the incident, that calledthe police.

When the police arrived the Applicant advised them that nothing was taken during the incident. [33] The justice was also informed that in many cases where persons produce or sell drugs these persons often keep firearms orother weapons for protection. [34] As a reviewing judge I am required to assess the information in its totality and in the context of the whole document. [35] I am also mindful that it is not necessary that the “criminal aspect” of the information, in this case the possession of handguns,be corroborated. In R. v.

Caissey, 2007 ABCA 380 MacFadyen JA stated at paragraph 23: The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, notwhether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of acrime itself being committed does not have to be confirmed: Koppang at para 8.

I agree with the comments of Doherty J.A. in R. v.Lewis (ON C.A.), (1998), 38 O.R. (3d) 540, 107 O.A.C. 46 at para 22: In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must beconfirmation of the very criminality of the information given by the tipster.

The totality of the circumstances approach is inconsistentwith elevating one circumstance to an essential prerequisite to the existence of reasonable grounds. [36] Assessing all the facts on a practical, non-technical and common sense basis this Court must determine whether the issuingjustice had sufficient objective factual information of a reliable nature to determine that there were reasonable grounds to believe thatfirearms, more particularly handguns, would be found in the Applicant’s residence, outbuildings or vehicles.

In other words whether thejustice had sufficient credible and reliable information to find reasonable and probable grounds to believe the Applicant had committedthe offences of unlawful storage or unauthorized possession of a firearm and that evidence of these offences would be found at hisresidence. [37] In this regard the comments of Justice Hill in R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 atparagraph 20 are instructive. He stated: ...An issuing Justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious...

In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions whichmight well elude an untrained person... Probable cause does not arise however from purely conclusory narrative. [38] I am of the view that when the ITO as amended is considered as a whole it contained sufficient facts to establish reasonable

[ 38 ] I am of the view that when the ITO as amended is considered as a whole it contained sufficient facts to establish reasonable grounds for believing that the things to be searched for would be found at the Applicant ’ s residence or outbuildings. The ITO established a factual nexus between the items to be searched for and the location to be searched. It was not based on mere conclusory statements but rather on the personal observations and conversations of two Sources with the Applicant.

These Sources both indicated that the Applicant was dealing drugs from a shed located on his property; that the Applicant had three firearms; the Sources described the calibre of weapons they had seen or been told of by the Applicant in the previous one to four weeks.

Some of the information provided by Source A was corroborated by the affiant Constable Smith such as the location of the shed; that it was across the road from the Applicant ’ s residence which was under renovation; the make, model and colour of the Applicant ’ s vehicles and where they were parked. [ 39 ] The ITO also contained facts regarding the Applicant ’ s criminal record for drug and weapons offences; the three home invasions over a four year period, two of which were by armed gunmen; and the affiant ’ s statement, based on experience and training that drug dealers often keep firearms or other weapons for protection. [ 40 ] In conclusion, the justice had before him reasonable and probable grounds establishing a factual nexus between the offences for which the warrant was sought and the places to be searched.

The search warrant was properly issued and the evidence obtained as a result of the search is admissible. ____________________________ Cacchione, J.