R. v. Robart, 2015 NSSC 249

SUPREME COURT OF Nova Scotia Citation: R. v. Robart , 2015 NSSC 249 Date: 20150130 Docket: CRH-421714 Registry: Halifax Between: Her Majesty the Queen v. Joan Robart Judge: The Honourable Justice Felix Cacchione Heard: January 15, 2015, in Halifax, Nova Scotia Written Decision September 14, 2015 Counsel: Shaun O’Leary, for the Crown Stanley W. MacDonald, Q.C. for the Ms. Robart By the Court: [ 1 ] The accused Joan Robart (the Applicant) is charged with five offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19.

Four charges relate to possession for the purpose of trafficking in various substances and one charge refers to producing crack cocaine.

These charges arise from the warrantless arrest and search of the applicant as she exited a residence at 75 Cutter Drive Bedford, in the Halifax Regional Municipality and a subsequent search under warrant of that residence. [ 2 ] The Applicant challenges the validity of the search warrant issued on June 14, 2012 to search that residence at 75 Cutter Drive, Bedford, Nova Scotia claiming that the Information to Obtain (ITO) did not contain sufficient information to justify the issuance of such a warrant. [ 3 ] The Applicant alleges an infringement of her rights pursuant to

section 7 of the Canadian Charter of Rights and Freedoms and seeks an order excluding evidence pursuant to section 24(2) of the Charter . [ 4 ] The Crown (the Respondent) conceded at the commencement of the hearing that the Applicant had standing to bring this application. [ 5 ] The burden of displacing 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.

[6] The framework to be used when considering the validity of an ITO was set out by the Supreme Court of Canada in R. v.Morelli 2010 SCC 8 , [2010] 1 S.C.R. 253. At paragraphs 39 to 41 Justice Fish speaking for the majority stated: 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…consistent with s. 8of the Charter, for authorizing search and seizure’.

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’… The question is not whether the reviewing courtwould itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace tofind reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found atthe specified time and place.

The reviewing court (that is this court) does not undertake its review solely on the basis of the ITO as it was presented to thejustice of the peace. Rather, ‘the reviewing court must exclude erroneous information’ included in the original ITO...

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. [7] It is important to keep in mind throughout this analysis that the search warrant is presumed to be valid and correct.

Thequestion is whether the applicant has established that there was no basis for the granting of an authorization to search. [8] The standard of reasonable and probable grounds for search warrants to be consistent with s.8 of the Charter was set out in thecase of Hunter v. Southam where the court referred to the credibly based probability. This is also been referred to as reasonableprobability or reasonable belief: R. v.

Debot (1989) (SCC), 52 C.C.C. (3d) 193 (S.C.C.). [9] 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 this reviewing court must do, is to identify credible facts that make the decision to authorize asearch reasonable in light of all the circumstances. [10] It is essential that the grounds for believing that there is evidence in the place to be searched are based on the operation ofreason and not on mere suspicion.

The standard is necessarily qualitative and reasonable people can differ in some cases about whetherthe authorization should have been granted. [11] The statement of facts set out in the sworn ITO must satisfy the issuing justice that there are reasonable grounds for believingany of the things set out in s.487 of the Criminal Code. It is not sufficient that the justice should be satisfied, he must be satisfied onreasonable grounds; that is the grounds of belief set out in the information to obtain must be such as would satisfy a reasonable man.

It isonly where credibly based probability replaces suspicion that the state’s interest in detecting and preventing crime begins to prevail overthe individual’s interest in being left alone. [12] The test to be applied by a reviewing court was set out by the Supreme Court of Canada in R. v.

Araujo 2000 SCC 65 ,[2000] 2 S.C.R. 992 where at paragraph 51 the court stated: …the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which theauthorization could have issued. [13] The question is not whether in my opinion, as the reviewing judge, it should have been granted at all by the authorizing judge,but whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. [14] This test was recently summarized by Justice Cromwell in R. v.

Vu 2013 SCC 60 , [2013] 3 S.C.R. 657 at paragraph 16where he stated, The question for the reviewing judge is ‘whether there was reliable evidence that might reasonably be believed on the basis ofwhich the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been grantedat all by the authorizing judge’… In applying this test, the reviewing judge must take into account that authorizing justices may drawreasonable inferences from the evidence in the ITO; the informant need not underline the obvious… [15] A similar view regarding the issuing justice’s ability to draw inferences was set out in R. v.

Allain (NB CA),1998 N.B.J. No. 436 where Drapeau J.A. stated at paragraph 11: …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.

[16] He went to say at paragraph 14: …a warrant should only be issued where there is a credibly based probability that the items to be searched for are in the place specifiedin it… [17] As I have said this court does not substitute its view for that of the authorizing judge. If based on the record which was beforethe authorizing judge as amplified on review this court concludes that the authorizing judge could have granted the authorization, then itshould not interfere.

In this process the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, butrather than being a prerequisite to review their sole impact is to determine whether there continues to be any basis for the decision of theauthorizing judge. [18] Even a basis that is schematic in nature may suffice. However, it must be a basis founded on reliable information.

In R. v.Hiscock, (QC CA), [1992] R.J.Q. 895, Justice Lebel, as he was then in the Quebec Court of Appeal held that lookingfor reliable information on which the authorizing judge could have granted a warrant, the question is simply whether there was at leastsome evidence that might reasonably be believed on the basis of which it could have been issued. [19] The reliability of the information contained in the ITO is assessed by recourse to the totality of the circumstances, including thedegree of detail, the informer’s source of knowledge and the indicia such as the informer’s past reliability and confirmation from othersources. [20] In the present case, no viva voce evidence was called at the hearing, however counsel agreed that two aspects of the ITO wouldhave been amplified by the affiant Detective Constable Lane had he testified.

These relate to the paragraphs 4 and 13 of the ITO. [21] Paragraph 4, as drafted, refers to June 14, 2011 as the date when Det. Cst. Lane received information from another policeofficer. This date should have read June 14, 2012. [22] Paragraph 13 of the ITO, as drafted, refers to Paul Roy being in possession of cocaine for the purpose of trafficking and that awarrant to search the residence at 75 Cutter Drive would result in the seizure of this drug and offence related property.

The name inparagraph 13 should have read Gerald McNamara. [23] These two corrections to the ITO were acknowledged as being typographical errors, however the applicant argued that they hadsome significance in that they showed a lack of attention by both the drafter of the ITO and the Justice who issued the warrant.

Theapplicant also points to the fact that it took a mere 12 minutes from the time the ITO was sent by fax machine to the justice and theissuance of the warrant as corroborative of this lack of attention. [24] The applicant submits that the information contained in the ITO falls short of establishing reasonable and probable grounds tobelieve that there was evidence of a crime to be found at 75 Cutter Drive. [25] The respondent contends that the ITO stands or falls on the basis of the information that was before the issuing justice of thepeace and when reviewed in its totality, the ITO provided the issuing justice with sufficient information to establish that reasonable andprobable grounds existed to believe that an offence had been committed and that there was evidence to be found at the place to besearched. [26] The ITO in this case made the issuing justice aware that on June 14, 2012 Gerald McNamara (McNamara) and Michelle Walsh(Walsh) were in police custody and under arrest for possession of crack cocaine for the purpose of trafficking.

The justice was alsoaware that the police had been conducting surveillance that day on McNamara and Walsh as they had source information that McNamarawas involved in the distribution of crack cocaine. [27] The ITO also informed the justice that the police had observed McNamara and Walsh in a vehicle parked in a parking lot onWyse Road in Dartmouth and that Walsh had exited the vehicle, walked around the parking lot as if looking for someone and then metwith another male in the parking lot. Walsh returned to the vehicle where McNamara was seated.

Believing that they had just observed adrug transaction the police activated their emergency equipment and attempted to block the McNamara vehicle from exiting the parkinglot.

McNamara drove the vehicle in reverse and struck at least two police vehicles in his attempt to flee the scene. [28] The justice was also advised that McNamara refused to open the vehicle door and had to be forcibly removed from the vehicle.As well the justice was notified that upon searching the vehicle the police discovered a large sum of cash currency in bundles on theperson of McNamara, 40 to 50g of crack cocaine in the console of the vehicle and a money transfer dated June 12, 2012 to a knowncrack dealer in the City of Halifax. [29] The ITO also indicated that upon arrest, when asked where he lived by the arresting officers, McNamara advised them that helived on Gottingen Street in Halifax.

The affiant deposed that he had, on June 14, 2012, personally reviewed a recognizance issued onJuly 29, 2011 in relation to a charge of drug trafficking against McNamara and that this recognizance showed McNamara as residing at75 Cutter Drive. [30] Through the ITO the justice was also informed that McNamara had a criminal record dating from 1981 to the present forvarious offences including convictions for conspiracy to traffic in a narcotic in 1993, possession for the purpose of trafficking andtrafficking in 2008. [31] The justice was also aware of information emanating from two confidential informants described in the ITO as persons whoassociated freely with persons involved in criminal activity and who had personal knowledge of the information provided based on theirconversations and observations of the persons involved.

[ 32 ] The reliability of the information provided by the first confidential informant identified as Source A, was based on five prior occasions where this source had provided information which proved accurate through the execution of search warrants in which evidence seized was consistent with the information provided by that source. [ 33 ] The justice also knew from the ITO that the affiant had on June 14, 2012 spoken with Source A, who he had known for two years and was advised by the source that: McNamara was a cocaine trafficker who supplied lower level dealers; that McNamara was selling every day; that McNamara obtained kilograms of cocaine at a time; and that McNamara currently lived in a place located off Larry Uteck Boulevard in Bedford.

The affiant also advised the justice that Cutter Drive could be reached by travelling on Larry Uteck Boulevard. As well the justice was aware that this informant had a criminal record and had been paid for information in the past. [ 34 ] The ITO also apprised the justice about information which the affiant had received from another police officer who had a confidential informant, identified as Source B, whom he had used as an informant for three months. This informant had a criminal record but had not been paid for information that he or she provided in the past. The officer who provided the information to Det.

Cst. Lane, the affiant, believed his informant to be reliable because information provided by that informant had led to positive arrests under the Controlled Drugs and Substances Act on one occasion. The information provided by this informant, Source B, was somewhat dated in that it was 3 to 4 weeks old. [ 35 ] Source B’s information was that: McNamara sold crack cocaine; that McNamara supplied lower level dealers; and that the dealers picked up their drugs directly from McNamara’s house. [ 36 ] The justice also knew from Det. Cst.

Lane’s information, based on his expertise as a drug investigator: that drug traffickers sometimes use a stash house to store their supply of drugs and or money; that such a location would usually not be the traffickers own residence however, it could be; and that a trafficker might sell from his or her own residence where the purchaser was a proven trusted customer or was someone working directly for that trafficker. [ 37 ] Det. Cst.

Lane’s belief that cocaine and offence related property were to be found at 75 Cutter Drive was based on: the substantial quantity of crack cocaine and money found on McNamara’s person at the time of his arrest and the cocaine found in the vehicle; McNamara’s actions when the police attempted to arrest him; McNamara’s lying to the police about his address; and also the information provided by the confidential informants. [ 38 ] The applicant submits that the information provided to the police by the sources was insufficient as it was mere rumour and gossip and that the ITO contained insufficient information to enable a justice to infer that 75 Cutter Drive was a location that might afford evidence of an offence. [ 39 ] The applicant also argued that the two errors contained in paragraphs 4 and 13 of the ITO together with the brief 12 minute period between the ITO being faxed to the justice and the warrant being issued are significant in that they show a lack of attention by both Det.

Cst. Lane and the issuing justice. While I agree that these errors could be viewed as showing a lack of attention, they do not, however, detract from the relevant information that was before the issuing justice. I note as well that the ITO was not a particularly long document. [ 40 ] In written follow-up submissions the applicant cites the case R. v. Bernabe [2014] O.J. No. 5617 with respect to the sufficiency of information contained in an ITO. The Bernabe case can be distinguished from the present one because in Bernabe the confidential informant had “not previously been used” by the police.

Whereas in the present case the informants had previously been used by the police and their information had led to positive searches or arrests under the Controlled Drugs and Substances Act . As well, the information before the justice in the present case differs from that in the Bernabe case because in the present case there was information about McNamara’s pattern of business. That is: supplying lower level traffickers; the type of drug being sold; and that lower level traffickers picked up their supply from McNamara’s house.

Furthermore, in the present case both informants were described as having personal knowledge of the information provided based on conversations and observations of the persons involved.

Whereas in the Bernabe case, there was nothing in the information attributed to the informer that spoke to the informers having personal observations or knowledge. [ 41 ] The respondent submits that: McNamara’s criminal record of drug offences; his possession of 40 to 50g of crack cocaine; the large amount of cash, in bundles, found on him at the time of his arrest; the recent money transfer to a known drug trafficker; McNamara’s attempted flight and his lying to the police about his address; together with the inferences which the justice could draw from these facts, all lead to the conclusion that it was reasonable for the justice to infer that McNamara’s home might contain evidence of the offence. [ 42 ] The respondent also argues that the information provided by the informants was not mere rumour or gossip but was in fact detailed and corroborated.

It points to the information regarding where McNamara lived; that he was supplying lower level traffickers; the general location of his residence and the amount of crack cocaine found in McNamara’s possession at the time of his arrest.

It also points out that the information provided by the confidential informants was based on their personal observations and conversations with persons involved and as well that the sources were reliable. [ 43 ] The respondent contends that the totality of the circumstances before the issuing justice was sufficient to enable the issuance of a search warrant. [ 44 ] In the present case I am satisfied based on the totality of the circumstances presented to the justice that there was sufficient information to allow the issuance of a search warrant.

Accordingly the warrant was valid and the application to quash is dismissed. Cacchione, J.