R. v. Sparks, 2015 NSSC 233

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Sparks , 2015 NSSC 233 Date: 2015-09-02 Docket: CRH 432272 and 432274 Registry: Halifax Between: Her Majesty the Queen v. Jacob Jamal Sparks LIBRARY HEADING Judge: The Honourable Justice Peter Rosinski Heard: August 4, 2015, in Halifax, Nova Scotia Written Decision: September 2, 2015 Subject - Sufficiency of information to obtain [ITO] in support of search warrant pursuant to

section 11 Controlled Drugs and Substances Act ; when reliance in ITO on confidential informant sources and anonymous tipster is appropriate.

Section 8 and 24(2) Charter analysis on the presumed basis that the ITO was deficient.

Summary - Mr. Sparks was charged with trafficking in cocaine. Four confidential informants and one anonymous tipster provided information included in an ITO which sought a search warrant of a residence. He argued that the information provided was insufficiently recent; that the sources only provided hearsay information; that the sources had insufficient credibility; that the sources’ information was not compelling. Issue - On review, the question is whether there was reliable evidence before the justice of the peace that might reasonably be believed, on which the authorization could have issued?

Result - The ITO was sufficient to permit the issuance of the search warrant. Even if the ITO was deficient, an assessment under the principles in R v Grant 2009 SCC 32 would result in the evidence being admissible in any event. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF Nova Scotia Citation: R. v. Sparks , 2015 NSSC 233 Date: 2015-09-02 Docket: CRH No. 432272 and 432274 Registry: Halifax Between: Her Majesty the Queen v.

Jacob Jamal Sparks Judge: The Honourable Justice Peter Rosinski Heard: Written Decision: August 4, 2015, in Halifax, Nova Scotia September 2, 2015 Counsel: Kevin MacDonald, for the Crown Ian Hutchinson, for the Defence By the Court: Introduction [ 1 ] In January 2012, police believed Mr. Sparks was trafficking cocaine. At that time, he was required by bail conditions to live under curfew at 6 Mountain Avenue, Dartmouth. Police obtained a search warrant, and on February 2, 2012, seized cocaine and related materials from that residence. Mr.

Sparks was charged with trafficking in cocaine contrary to s. 5(2) of the CDSA and is awaiting trial by judge and jury set to begin September 10, 2015. [ 2 ] Mr. Sparks argues that the seized materials should be excluded as evidence in his trial, because the ITO [Information to Obtain] did not contain direct evidence, or permit an inference that, cocaine would be found at 6 Mountain Avenue on February 2, 2012. He elaborates that the ITO sworn in support of the search warrant is flawed in two ways, either of which so undermines the bases on

which the warrant was issued, such that no JP could have issued the warrant: a. (

i) The information provided by the four confidential informants did not specify “when” those sources acquired the relevantinformation, or for how long their information would remain reliable [the “staleness” argument]; (ii) The information provided by the four confidential informants did not specify “how” those sources acquired the relevantinformation [the lack of personal observation/hearsay argument]. b.

As drafted, the ITO is deficient because the information provided by the confidential informants was neither compelling norcredible. [3] Counsel agreed that if the court concludes that the warrant is so deficient that it could not reasonably have been issued by anyjustice of the peace, the search at 6 Mountain Avenue becomes warrantless, and consequently a violation of Mr. Sparks’ s. 8 Charterrights. This requires the court to go on to assess whether the evidence seized by police ought to be excluded pursuant to an analysisunder the s. 24(2) of the Charter per R. v. Grant, 2009 SCC 32.

The applicable legal principles [4] The applicable law is not in dispute. [5] The search in this case was authorized under s. 11 of the Controlled Drugs and Substances Act, S.C. 1996 c. 19, as amended. [6] Regarding the sufficiency of the material provided to a justice of the peace in an ITO, Justice Fichaud reviewed the law recentlyin R. v. Liberatore, 2014 NSCA 109. [7] An ITO must provide reasonable grounds to allow a justice of the peace to believe that: i. An offence has been committed; ii. There is a nexus between the offence and the items sought; and iii.

The items sought are expected to be on the premises at the time of the search. [8] As reiterated in R. v. Morelli 2010 SCC 8 , [2010] 1 S.C.R. 253, in my review of the sufficiency of this ITO, “the testis whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued …[and citing from R. v.

Araujo, 2000 SCC 65, at para. 51 per LeBel J.: “in looking for reliable information on which the authorizing judgecould have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believedon the basis of which the authorization could have issued”] [emphasis in the original]. [9] The authorizing justice of the peace “may draw reasonable inferences from the evidence in the ITO….” – per Cromwell J., atpara. 16, in R. v.

Vu 2013 SCC 60 , [2013] 3 S.C.R. 657. [10] Hearsay evidence may be relied upon as a basis for inclusion in an ITO and the consequent issuing of a search warrant. Reasonably reliable hearsay passed between law enforcement personnel is generally sufficient to contribute to establishing thereasonable grounds required for the issuance of search warrants. However, hearsay received by law enforcement personnel fromconfidential informants, if repeated and relied upon in an ITO, must provide the justice of the peace the ability to assess the reliability ofthat source’s information.

Bald conclusions from a confidential informant do not permit such assessment, and are insufficient bythemselves - R. v. Debot (SCC), [1989] 2 SCR 1140, per Wilson J., at pp 1167-1172; and Liberatore per Fichaud JA, atparas. 27-28. [11] The more credible and compelling the source, the greater weight their hearsay information in an ITO will carry. Albeit in thecontext of a warrantless search, such assessments derive from Justice Wilson’s comments in Debot, that: There are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantlecs search.

First, wasthe information predicting the commission of a criminal offense compelling? Second, where that information was based on a ‘tip’originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the ‘totality of the circumstances’ must meet the standard of reasonableness.

Weaknessesin one area may, to some extent, be compensated by strengths in the other two. [my emphasis added] [12] In assessing the reliability of a confidential informant’s information, a justice of the peace “must look to a variety of factors”and the reliability of the tip is to be assessed by recourse to “the totality of the circumstances.” Justice Cromwell (as he then was)provided a helpful

summary of considerations as to what may amount to “credibily-based probability” in R. v. Morris, (1998) 1998NSCA 229 , 173 NSR (2d) 1 at paras. 29 – 30: 29 The existence of reasonable grounds is therefore critical to the balancing of the values of privacy and effective crime detection. Torepeat often used words: The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point wherecredibly-based probability replaces suspicion. (Hunter at p. 167). (emphasis added)

30 Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establishthis "credibly based probability": (

i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that anoffence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at aspecified place: (R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen.

Div.) at 365) (ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents withoutlegal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at364) (iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality ofcircumstances, disclose a substantial basis for the existence of the affiant's belief: R. v.

Yorke (1992), (NS CA), 115N.S.R. (2d) 426 (C.A.); aff'd1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647. (iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is tobe assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at pp. 1456-1457: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what thisentails. Rather, the court must look to a variety of factors including: (

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. [13] Notably, “information of a crime itself being committed does not have to be confirmed.” R. v. Caissey, 2007 ABCA 380 perMacFadyen J.A.; affirmed 2008 SCC 65 , [2008] 3 SCR 451. [14] A review of a search warrant begins with a presumption that it was validly issued. Mr. Sparks bears the evidentiary andpersuasive burden of establishing on a balance of probabilities, the unreasonableness of the search by attacking the information to obtainand/or the circumstances of search itself – R. v.

Collins (SCC), [1987] 1 SCR 265. Mr. Sparks has not argued the searchitself was carried out unreasonably. [15] Whether the justice of the peace had sufficient objective factual information of a reliable nature to conclude that there werereasonable grounds for the search must be assessed on a practical, non-technical, and common sense basis. I must not “deconstruct”every paragraph of the ITO in a piecemeal manner, in conducting this assessment, but rather look at the “totality of the circumstances” aspresented to the justice of the peace as in R. v.

Saunders, 2003 NLCA 63 per Wells C.J.N. and Rowe J.A., at paras. 9 and 15; affirmed ina brief endorsement, 2004 SCC 70. Mr. Sparks’ argument that the information provided by the four confidential informants was either “stale” or insufficientlyprecise such that no justice of the peace could conclude a search would reveal drugs on February 2, 2012, at 6 Mountain Avenue,Dartmouth, Nova Scotia. [16] Mr. Sparks put his argument, thusly: The information provided by the confidential sources was dated and stale.

The information was not current and failed to specify a dateupon which the drugs were seen at, or in, 6 Mountain Avenue. [17] Mr. Sparks cites the following cases in support of his position: a. R. v. Dewolfe, 2011 NSPC 1; b. R. v. Campbell [2005] O.J. No. 2369 (ONSC); c. R. v. Chen, 2007 ONCJ 177; d. R. v. Colby, [1999] SJ No. 915 (QB); and e. R. v. Jamieson, [1989] N.S.J. No. 158 (CA). [18] The Crown put its position as follows: The common-sense reading of the ITO in its totality shows that the issuing JP could easily conclude that reasonable grounds for this

belief existed: there was a continuous stream of consistent information coming into the police from four different sources capable ofsupporting the belief that on February 2, 2012, there was cocaine at 6 Mountain Avenue, Dartmouth, and 3 MacKenzie Street,Dartmouth. [19] The Crown distinguishes on their facts, the cases relied on by Mr. Sparks. Crown counsel relies on the comments of JusticeMartin in R. v. Clow, 2012 ABQB 656. Of particular are her comments at paras. 47 and 72: 47. That being said, more recent information is obviously more persuasive than older, out of date evidence.

Still, older information isnot necessarily indicative of a faulty ITO. Dufour J. of the Saskatchewan Court of Queen’s bench canvassed case law relating to theissue of timing in R. v. Wonitowy, 2010 SKQB 346 , 2010 SK QB 346 … and concluded at para. 37: It is not just the number of days or weeks or months that have elapsed since the date of the most recent evidentiary basis in the ITO thatis determinative. The currency of the information is but one factor to be considered in the totality of the circumstances of each particularcase. … 72.

Further, the case law does not elevate the timing of the information to the status of precondition or determinant. It is one variable inassessing the reliability of the information. The accused argue that while the Court of Appeal has stated that timeliness is not an absoluterule, the evidence must be recent enough to satisfy the issuing justice that it is probable the things sought will still be at the location, notthat it is possible that they are still there. In the case at bar the information provided by source A is similar to the more recentinformation provided by source B.

This consistency not only shows a pattern, it increases the reliability of the evidence on a probability-based analysis as similar information was obtained from two separate sources at two different times. [20] To similar effect, see Justice Frankel’s comments for the court in R. v. Ballendine, 2011 BCCA 221: 54 Merely because information is ‘dated’ does not mean it is ‘stale.’ While the length of time that has passed is to be taken into accountin a reasonable – grounds determination, it is but one factor. As Judge Moylan stated in Andresen v. State, 331 A. 2d 78 at 106 (Md. Ct.Spec.

App. 1975) affirmed 427 U.S. 463 (1976): The ultimate criterion in determining the degree of evaporation of probable cause, however, is not caselaw but reason. The likelihoodthat the evidence sought is still in place is a function not simply of watch and calendar, but of variables that do not punch a clock … [21] Counsel for the Crown and Mr. Sparks have also placed before me evidence from the preliminary inquiry transcript to assist inmy determination regarding Mr. Sparks’ assertion that the information from the confidential informants was “stale.” [22] Mr.

Sparks specifically directs the court’s attention to the evidence of Cpl. Tyson Nelson, Cst. David Li, and Cpl. ScottManning. Both counsel agreed that the court could consider their evidence to conclude that the assertions of drug trafficking against Mr.Sparks indicate that he would be characterized as “a street-level dealer of cocaine.” Each officer had significant experience investigatingthe drug trade. Each tended to agree that it is characteristic of street-level dealers of cocaine to have a quick turnaround in terms ofpurchase and sale of drugs. [23] Spring-boarding off of that assertion, Mr.

Sparks argues that for street-level dealers of cocaine, the recency of information fromconfidential informants as to the presence of drugs attains a heightened importance when included in an ITO, because the specific drugsexpected there on one day, may very well not be expected to be there the next day. [24] Crown counsel argues that, the totality of the information presented to the justice of the peace, particularly when looked atchronologically, reveals a “common thread” that points to there being reasonable grounds of trafficking in drugs on an ongoing basis. [25] I agree with the Crown’s position.

In the proper circumstances, it will be open to a justice of the peace “to infer criminalityfrom criminality” – R. v. Beauchamp, 2015 ONCA 260, at paras. 111-113. [26] In large measure Mr. Sparks asks the court to deconstruct the ITO. It is inappropriate to analyse the information in the ITO ona piecemeal basis. [27] Moreover, I must consider not only the explicit information presented to the justice of the peace, but also allow for reasonableinferences that a justice of the peace could have appropriately drawn. [28] I conclude that, Justice of the Peace, Angus A.

McIntyre, , could reasonably have concluded that the information provided inthe ITO showed indicia consistent with the street level dealer of cocaine, and that the ongoing nature of Mr. Sparks’ dealings couldreasonably have been expected to have continued up to, and including, February 2, 2012. [29] The justice of the peace was presented with information, including: i. That of Detective-Constable McCormack who has significant experience in investigating the drug trade in HRM; ii. Mr. Sparks had been recently convicted of possession of cocaine, and had other convictions; iii. Mr.

Sparks was required by bail condition, to reside at 6 Mountain Avenue, Dartmouth, and maintain a curfew;

iv. Source C who met with his/her handler for two years on a daily to weekly basis, and who the police reasonably believed had been repeatedly reliable, advised his/her handler between January 29 – 31, 2012 that “Jacob Sparks in possession of crack/cocaine packaged for resale,” and advised his/her handler between January 17 – February 1, 2012, that “Jacob Sparks is selling crack cocaine; he was observed in possession of crack cocaine, packaged for resale; he can be texted during daytime hours and calls him at night to buy drugs.” v.

Source A, who met with his/her handler for six months on a bi-weekly basis, and who police reasonably believed had been reliable, advised his/her handler between December 29, 2011, and February 1, 2012, that: “Jacob Sparks is going to do a drug rip in the near future; and advised his/her handler between January 13 – 24, 2012, that: “Jacob advised source A that he was in possession of cocaine for the purpose of resale … Jacob Sparks is still selling crack cocaine; Jacob keeps the cocaine at 6 Mountain Avenue Dartmouth; Jacob spends his day going between 6 Mountain and 3 MacKenzie Street doing drug sales; Jacob keeps his guns at 3 MacKenzie Street at night during his curfew as he is afraid to be caught at his home with crack cocaine and guns as he believes that his sentence will be a lot stiffer if caught with both; Jacob Sparks’ mother resides at 3 MacKenzie Street”; vi.

Source B, who met with his/her handler for approximately five months on a 2 to 3 times a week basis, and who police reasonably believed had been repeatedly reliable, advised his/her handler between January 11 – February 1, 2012, that: “Jacob keeps drugs at Mountain Avenue; Jacob holds between 50 – 100 g of cocaine at a time … Jacob gets his drugs from Blaine Tynes [Detective Constable McCormack states therein: ‘I have personal experience from past investigations that Blaine Tynes was found in possession of crack cocaine and a gun at his residence.’] … Jacob also has Frankie Tynes selling drugs for him … Jacob carries a [blank] handgun (big and black), … Jacob keeps his guns at 3 MacKenzie Street [Detective-Constable McCormack states therein: ‘it is my opinion that Jacob Sparks is using a “stash house.” A stash house is a location that is chosen by a trafficker in which he/she will keep their main supply of drugs, money and/or guns.]” vii.

Source D, who met with his/her handler for approximately one year 3 to 4 times a week, and who police reasonably believed had been repeatedly reliable, advised his/her handler on approximately July 31, 2011, that “Jacob, Earlandres [Smith] and Jakeel [Tynes] have been staying at 3 MacKenzie Street and are running a dial-a-dope from the residence.” viii. A one-time tipster spoke to Constable David Lane, between January 22 – 25, 2011 [sic 2012].

He/she and advised “that there is an ongoing feud from two rival groups in the Dartmouth area … The Mountain Avenue Boys … and Downey Town North Preston Boys … also advised that Jacob Sparks, Frankie Tynes, Earlandres Smith, Jakeel Tynes, and other unknown males are part of the [Mountain Avenue Boys] … also advised that Jacob Sparks, Frankie Tynes … have firearms in their possession on an almost a constant basis as they are fearful for their safety”; ix. Police surveillance reveals that: on January 25, 2012, Frankie Tynes was observed leaving 3 MacKenzie Street, and five minutes later Mr.

Sparks exited the same residence, and got into a cab, which took him to 6 Mountain Avenue where he entered that residence. [ 30 ] Without considering for the moment Mr. Sparks’ other arguments that the confidential informant sources were neither credible nor was their evidence compelling, this information before the justice of the peace provided a sufficient basis for the justice of the peace to conclude that there were reasonable grounds to believe that drugs would be found at 6 Mountain Avenue on February 2, 2012. Mr.

Sparks’ argument that the information provided by the four confidential informants was not sufficiently credible, or compelling, to allow any justice of the peace to conclude a search would reveal drugs at 6 Mountain Avenue, Dartmouth, on February 2, 2012. [ 31 ] Mr. Sparks argues that the ITO is imprecise about “how” those informants acquired the relevant information, viz. whether through hearsay or personal observation. As a matter of law he says that the court cannot presume they obtained the information by personal observation, citing R. v.

Day , [1998] OJ No. 4461 (CA) (leave to appeal refused 130 OAC 199 ). [ 32 ] The reasons in Day do not support the broad legal proposition put forward by Mr. Sparks in his brief. The court should no more presume that the informants obtained their information through rumour or gossip, than it should that they obtained it through personal observation. How the sources acquired the relevant information must be gleaned, if possible, from the wording in the ITO. [ 33 ] Mr.

Sparks also argues that the information provided by the informants is not credible because they have criminal records, they are motivated by money, were paid for the information they provided, and they associate with persons involved in criminal activity. [ 34 ] I bear in mind that a justice of the peace only has the ITO available to him or her. Unlike courts conducting hearings or trials, they face inherent limitations, there being no witnesses present, except the affiant, whose credibility can be assessed.

Consequently, their attention necessarily must be on the objective reliability of the information provided by the sources. [ 35 ] Furthermore, confidential informants are frequently the only persons who have the necessary access to such information. Persons in the drug trade seek to remain undetected by police. Confidential informants have a class privilege protecting their identity. In requesting a warrant to search, law enforcement personnel must ensure that the privilege accorded to confidential informants is preserved. This entails drafting the ITO in a manner that protects confidential informants.

Of necessity, the information provided to a justice of the peace in such cases will not be as fulsome as it might be in the case of persons without that privilege. [ 36 ] Mr. Sparks argues that because the confidential informants are paid for their information, the stock any court can put in their credibility should be lessened. When one considers objective reliability, that conclusion is not necessarily valid.

If confidential infirmants have repeatedly provided reliable information, which does incidentally serve their own interest to continue being paid for such information, that previous reliability tends to generally improve the chances that they will remain reliable, absent any intervening information to the contrary. Moreover, to the extent that their information is corroborated by objectively verifiable information, their credibility is enhanced. [ 37 ] Mr. Sparks states that, a finding that police officers have formed reasonable and probable grounds is not the kind of

corroboration required to confirm reliability of a confidential source: R. v. Rocha , 2012 ONCA 707 . In Rocha , Rosenberg J.A., characterized a claim of previous reliability, based on information provided that led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property which involved a single confidential informant source as: 19 …weak… primarily because of the awkward wording of the ITO.

The critical paragraph the ITO is this: … ‘The source previously provided information to police that has led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property’ … It seems that the affiant is attempting to convey the idea that information from the informer has led to the finding of contraband, but this assertion is confused with the assertion that the informer’s information has merely led to the laying of charges. Also, the phrase ‘in some cases the information has been corroborated, by handlers or investigators forming reasonable grounds to believe’ is confusing.

The fact the police officers have formed reasonable grounds is not the kind of corroboration required to confirm the reliability of the confidential informer. [ 38 ] In the case at bar, we have multiple confidential informant sources, who tend to cross-corroborate each other. For example, source B [para. 6(

k) of the ITO] refers to Sparks as dealing cocaine and keeping cocaine at Mountain Avenue where he lives with his grandmother, and that he has firearms which he keeps at 3 MacKenzie Street, Dartmouth; source A [paragraph 13 of the ITO] refers to Sparks as still dealing cocaine and keeping cocaine at 6 Mountain Avenue, and his guns at 3 MacKenzie Street, Dartmouth; source C [para.14 of the ITO] refers to Sparks being in possession of crack cocaine for resale when Sparks came directly from his grandmother’s house at 6 Mountain Avenue, Dartmouth, and sold the drugs at an apartment building close to his house on Lakecrest Drive, Dartmouth. [ 39 ] The ITO also contained information from an anonymous tipster [para.5(j)(iv) pages 6-7 ITO] who refers to Sparks as having firearms in his possession “on almost a constant basis,” and that he “uses cabs to deliver drugs” and “does not sell drugs from the house but does have the drugs there.” [ 40 ] In relation to one time anonymous tipsters and the assessment of the reliability of their information, the New Brunswick Court of Appeal in R. v.

Goodine , 2006 NBCA 109 , put the question as follows: Must the allegation of criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before the police can lawfully act upon that allegation and proceed to arrest its target? In my view, an affirmative answer is not ordained, as a matter of law. [ 41 ] However, as Justice Fichaud iterated in Liberatore at para. 27 that: ….

Even an anonymous tipster attracts the inquiries – how compelling was the information; how credible was the source; and was the information corroborated by other evidence? [ 42 ] In R. v. Caissey , 2007 ABCA 380 , Justice Martin dissented. He would have found the ITO deficient.

His disagreement was with what he perceived to be a statement of law by the majority, that a search warrant, issued in reliance on a first time informant whose credibility was unknown and whose information about criminal particulars was wholly uncorroborated, was valid. [ 43 ] Justice Martin elaborated: I accept that in assessing the reliability of the information provided, the totality of circumstances must be examined and shortcomings in one of the three factors may be compensated by strengths in another.

But here, there was no evidence at all to establish the third factor, informant’s credibility or meaningful corroboration. This is more than a mere shortcoming. [ 44 ] On appeal, the Supreme Court of Canada, supra , upheld the majority: 2 The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us.

On this issue, we agree with the test adopted by the majority. [ 45 ] The tipster’s information in this case also cross-corroborates the information from the other sources cited above. [ 46 ] Because the ITO does not specify how, that is by personal observation or not, the confidential informants, including the tipster, acquired their information, Mr.

Sparks argues such information is unreliable, and should not have been given any weight by the justice of the peace in deciding whether the ITO provided the necessary reasonable grounds for issuance of the warrant. [ 47 ] An examination of the ITO reveals that, in relation to each source - A, B, C, and D - the ITO contains identical wording as follows:

[The source] associates freely with persons involved in criminal activity and has personal knowledge of the information obtained herein based on conversations and observations of persons involved unless otherwise stated. [ 48 ] Mr.

Sparks argues that wording suggests that the confidential informants are relaying hearsay information to their handlers, which is being relied upon by the justice of the peace in his determination as to whether the warrant sought should issue. [ 49 ] Although that wording is ambiguous, the justice of the peace could reasonably have concluded that it was intended to convey: that each of the confidential informants has made personal observations of the matters constituting their information provided, or had direct [non-hearsay] personal conversations in relation to the matters constituting the information provided. [ 50 ] More specifically: in para.13 of the ITO, source A told his/her handler that “ Jacob advised source A that he was in possession of cocaine for the purpose of resale; “in para. 14 of the ITO source C told his handler that when he/she “ was present in the area of 6 Mountain Avenue, Dartmouth, Jacob Sparks was in possession of crack cocaine packaged for resale … Sparks came directly from his grandmother’s home at 6 Mountain Avenue and sold the drugs at an apartment building close to his house on Lakecrest Drive,” in paragraph 7(

k) source C told his/her handler that “ [Jacob Sparks] was observed in possession of crack cocaine packaged for resale ,” in para. 12, source C told his/her handler that “Jacob Sparks was in possession of crack cocaine, packaged for resale; Jacob Sparks left his grandmother’s place and walked to where the drugs were observed ; Jacob said that he would be “filling up” the same day” [a term used in the drug trade to indicate one would be getting a resupply of drugs] Conclusion [ 51 ] There was reliable information on which the authorizing justice of the peace could have determined that there were reasonable grounds for the issuance of this search warrant.

Section 24(2) Charter analysis [ 52 ] I am well satisfied of my conclusion. However, assuming that the ITO suffered from deficiencies that rendered the search warrantless, and a breach of Mr. Sparks’ 8 Charter rights. I will go on to conduct an analysis under s. 24(2) of the Charter in accordance with the requirements set out in R. v. Grant , 2009 SCC 32 .

Since an unlawful search is presumptively unreasonable, the burden is on the Crown to satisfy the court that the seized materials should nevertheless be admitted as evidence. [ 53 ] Examining the factors affecting whether a reasonable person, informed of all the relevant circumstances and in the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute, I find the evidence would have been admissible in any event. i.

Seriousness of the Charter-infringing State conduct [ 54 ] A warrantless search of an individual’s home has generally been described as a serious infringement of that person’s s. 8 right to be secure against unreasonable search or seizure. The Crown conceded that Mr. Sparks had a reasonable expectation of privacy at 6 Mountain Avenue, Dartmouth, as a result of his having to reside there to fulfil bail conditions.

Often the facts in such cases cause courts to favour exclusion of the evidence. [ 55 ] However, I note that here the police were very diligent in conducting their investigation and presenting a robust constellation of factors in the ITO for the justice of the peace to consider. The police clearly acted in good faith in obtaining the search warrant. The had also already received the “go-ahead” from another justice of the peace to conduct the search herein on January 25, 2012. ii.

Impact on the Charter-protected interests of the accused [ 56 ] The evidence before me is that the residence at 6 Mountain Avenue, Dartmouth, was rented to Irma Jean Sparks, D.O.B. is February 18, 1950, and that she is believed to be Mr. Sparks’ grandmother. Mr. Sparks was living there on February 2, 2012, to fulfil his bail conditions. Mr. Sparks also had access to, as a residence, his mother’s premises at 3 MacKenzie Street in Dartmouth. The duplex at 6 Mountain Avenue, Dartmouth, was also occupied by other persons. It is unclear to what extent of those premises Mr.

Sparks had a reasonable expectation of privacy. It is difficult, therefore, to make a precise finding about the impact on his Charter protected interests. iii. Society’s interest in an adjudication on the merits [ 57 ] The evidence subject to exclusion from this search at 6 Mountain Avenue, Dartmouth, is listed at para. 6 in the Agreed Statement of Facts exhibit VD –1: • 1.8 g of cocaine • 2.906 g of marijuana • One LG cell phone • Two blackberry cell phones • Canadian currency totaling $295

• A functioning digital scale • Used dime bags • A digital scale with white powder residue • Identification belonging to Jacob Jamal Sparks [ 58 ] As the Crown put it, without these seized items, the Crown has no case against Mr. Sparks in relation to 6 Mountain Avenue, Dartmouth. [ 59 ] These items are “non-bodily physical evidence,” and are reliable evidence.

Moreover, the seized items include inherently illegal prohibited drugs, in contrast, for example, to cell phones, etc., which are not illegal. [ 60 ] The dealing of cocaine, particularly with the violence and criminality that it brings is a serious threat to social order. As Justice Bryson stated in relation to the objectives of the Safer Neighbourhoods and Communities Act , S.N.S. 2006, c. 6 as amended, in Nova Scotia (Dir. of Public Safety) v.

Dixon , 2012 NSCA 2 , at para.62: The Act establishes civil means by which the insidious erosion of neighbourhoods and communities flowing from criminal activity can be forestalled. [ 61 ] This factor tends to favour not excluding the seized evidence. [ 62 ] As pointed out in R. v. Harrison , 2009 SCC 34 , at para. 36 : The balancing exercise mandated by 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth seeking interest of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 63 ] I am satisfied that a reasonable observer would see no reason in the circumstances here to dissociate the justice system from any arguable missteps by the police in this case. In good faith, the police proceeded to investigate this matter and obtain a search warrant from a justice of the peace, who independently reviewed it. While the search intruded on the home of Mr. Sparks, the extent of the invasion of his reasonable expectation of privacy is unclear.

The search revealed what had been anticipated: non-bodily physical evidence that is highly reliable and essential to the Crown’s case. Moreover, the seized items include cocaine (and marijuana), which drug is seen as seriously corrosive to the objective of the provision of a safe community environment. [ 64 ] Under the s. 24(2) Charter analysis, I would have concluded that the evidence should nevertheless be admitted. Rosinski, J.