R. v. Whalen, 2015 NLCA 7

Date: 20150224 Docket: 13/66 Citation: R. v. Whalen , 2015 NLCA 7 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : DENISE WHALEN AND WILLIAM WHALEN RESPONDENTS Coram: Welsh, Barry and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: January 20, 2015 Judgment Rendered: March 2, 2015 Reasons for Judgment by Barry J.A. Concurred in by Welsh and Hoegg JJ.A. Corrected decision: The original judgment was corrected on February 26, 2015. A description is appended. Counsel for the Appellant: Trevor N. Bridger Counsel for the Respondents: Averill J. Baker

Barry J.A.: [ 1 ] The Crown appeals a trial judge’s decision to quash a search warrant relating to alleged drug trafficking by Denise Whalen. [ 2 ] The information to obtain the warrant (“ITO”) set out information obtained from two confidential informants and from police surveillance of Ms. Whalen’s residence. [ 3 ] The reviewing judge found this information did not meet the standard of reasonable probability that evidence of an offence being committed would be found in the residence. Background Information [ 4 ] Both confidential sources stated that Ms.

Whalen was selling prescription drugs, including Ritalin, morphine and Oxycontin, from her home. They said people came to her front door in St. John’s to buy pills, completed the transactions very quickly and then left the residence. [ 5 ] The sources gave the prices she charged for the pills and told how she acquired the drugs. They stated she kept them in a locked safe in her basement.

Source “B” said he/she observed 10 to 15 drug transactions shortly before the search warrant was issued. [ 6 ] The police that same day set up a surveillance team and over a period of 92 minutes observed short visits by two females and at least four males to Ms. Whalen’s home. Searches of police data bases confirmed the information from Source “A” that Denise Whalen resided at the address with William “Billy” Whalen, who had facial tattoos. The police surveillance also confirmed that Mr. Whalen kept his bluish/grey Montana van parked in front of the house, as stated by Source “A”.

Source “A” was a paid informant who had no criminal record but was an admitted drug user. He/she had been providing information for one month resulting in one arrest. [ 7 ] Source “B” had been a confidential police informant for approximately 2½ years and provided intelligence on a regular and ongoing basis regarding criminal activity in St. John’s. Police said the information provided over the years was consistent with information received from others. Source “B” had been paid between one and five times for information received. The information led to the arrest of between five and ten individuals.

There was no evidence of any convictions resulting from the arrests. Source “B” is a drug user and has a criminal record but no offences pertain to crimes of dishonesty or deceit. The ITO described both sources as “reliable”. The Relevant Legislation [ 8 ] The warrant to search was issued pursuant to

section 11 of the Controlled Drugs and Substances Act , SC 1996, c. C-19 (“CDSA”). It reads: 11(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

a) a controlled substance or precursor in respect of which this Act has been contravened,

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed,

c) offence-related property, or

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. [ 9 ]

Section 8 of the Charter reads: 8. Search or seizure – Everyone has the right to be secure against unreasonable search or seizure. [ 10 ]

Section 24 of the Charter reads: 24.

(1) Enforcement of guaranteed rights and freedoms - Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Exclusion of evidence bringing administration of justice into disrepute - Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Trial Judge’s Decision [ 11 ] The trial judge concluded little weight could be afforded to the information provided by Source “A”: [16] … The past performance of this source was very limited, being only for approximately one month. Additionally Source “A” did not have sufficient familiarity with the co-accused to be able to provide the surname of either of them. It is unclear how Source “A” came upon the information which was passed along to Constable Field. Particularly, it is unclear as to how Source “A” would have access to information that the drugs and cash were locked up in a safe in the basement.

If this was from having personal knowledge then this should have been set out in the ITO. It is difficult to accept without more clarity that Source “A”, who did not know the suspect

well enough to know her last name, would have been able to view the contents of a locked safe in the basement of the residence. [12] The trial judge accepted that the information regarding the reliability of Source “B” was stronger: [17] The source qualification information respecting Source “B” is somewhat more solid. The past performance of this source is saidto have included providing information regularly for approximately two and a half years leading to “the arrest and/or convictions ofbetween five and ten individuals” relating to CDSA and the Criminal Code of Canada.

Additionally it does appear that at least some ofthe information from Source “B” derived from personal knowledge gained from having been in the residence on two occasions andpersonally seeing morphine pills of different strengths. This source also advised of having been in the house and seeing between 10 to15 people enter into the porch area of the residence to buy prescription pills.

Nevertheless the trial judge concluded the source information was not sufficient: [18] The source information though useful could not be said to be sufficient in and of itself to provide the basis for the issuance of asearch warrant. A review of the caselaw previously set out establishes that there ought to be an independent police investigation whichconfirms the source information and which provides corroboration beyond information which would be general public knowledge suchas the residence of a suspect or vehicle ownership. [13] The trial judge noted there had been corroboration of Ms.

Whalen’s residence by independent police database searches. But thetrial judge stressed the police surveillance had yielded no probative evidence of illegal activity. She noted it was not possible to inferthat two of the four females sighted entering or leaving were other than residents and there was no corroborative evidence of illegalactivity involving Ms. Whalen. The trial judge also pointed out that some of the coming and going observed appeared to have been bysome of the male residents of the house. The Issues [14] Two issues arise: (

i) Did the trial judge err in concluding the issuing judge had insufficient information to find reasonable grounds to believe that anoffence had been committed and that evidence of that offence would be found in Ms. Whalen’s house? (ii) If the answer is no, and Ms. Whalen’s Charter rights were breached, did the trial judge make an error in finding that theadministration of justice would be brought into disrepute if the evidence were to be admitted? The Law 1. The test for reviewing the validity of a search warrant [15] To be “reasonable” under Charter

section 8, a search must be authorized by law, the law itself must be reasonable and thesearch must be conducted in a reasonable manner. R. v. Caslake, (SCC), [1998] 1 S.C.R. 51. [16] The main question in this case is whether the search warrant was valid, that is, properly issued, in accordance with

section 11 ofthe CDSA. If it was, then the search was authorized by law. There is no issue here regarding whether the law is reasonable or whetherthe search was conducted in a reasonable manner. [17] There is a presumption of validity regarding a search warrant. The burden is on the accused to displace that presumption ofvalidity. R. v.

Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14. [18] In reviewing whether a Provincial Court judge properly issued a search warrant, a reviewing judge must ask whether theaccused has shown that there was no justifiable basis according to law upon which the authorizing judge could have granted the warrant.

In the present case this question comes down to whether the accused has shown that the authorizing judge did not have sufficientcredible information before him to establish reasonable grounds to believe that drugs were being trafficked from the Whalen residence atthe time of issuing. [19] Dickson J. in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 167, related the concept of probabilityto the concept of reasonable grounds. He described the “reasonable grounds to believe” requirement as reaching “the point wherecredibly-based probability replaces suspicion”.

This case confirmed that the grounds for a search must go beyond subjective belief andmere suspicion. [20] The concept of “reasonable grounds to believe” was also discussed by Wilson J. in R. v. Debot, (SCC), [1989] 2S.C.R. 1140, at p. 1166: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or“prima facie case”. The phrase “reasonable belief” also approximates the requisite standard. 2.

Deference to the issuing justice [21] Fish J. in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, stressed that the court reviewing the validity of a searchwarrant does not ask whether it would have reached the same decision as the authorizing judge but rather “whether there was sufficientcredible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had beencommitted and that evidence of that offence would be found at the specified time and place”. [22] This test was applied in R. v.

Grant, (SCC), [1993] 3 S.C.R. 223 (S.C.C.), and was reiterated by LeBel J. in R.v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. The Court in Grant, at p. 251, explained the limitations on the reviewing court:

The constitutional test for the sufficiency of information underlying a warrant was stated by this court in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at p. 1452 as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. [23] A judge reviewing the validity of a search warrant is required to show a high degree of deference to the issuing judge.

R. v.Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. A reviewing judge does not conduct a rehearing of the application for a warrant. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could beissued. R. v. Araujo, at paras. 51-52, (a wiretap case but similar principles apply to search warrants). 3.

Sufficiency of grounds – “Totality of circumstances” [24] In Debot, at p. 1168, Wilson J. explained that a reviewing court, when assessing the reasonableness of grounds to search, shouldask whether the information predicting the commission of an offence is compelling, credible and corroborated: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence 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. Weaknesses in onearea may, to some extent, be compensated by strengths in the other two.

It follows that the same three concerns arise when reviewing the sufficiency of the information set out in an ITO to obtain a searchwarrant. [25] The totality of the circumstances must be considered in assessing the reasonableness of the grounds set out in the ITO. TheDebot test does not require corroboration or confirmation of the offence itself. [26] In R. v. Poirier, 2009 NLTD 35, 285 Nfld. & P.E.I.R. 252 (NLTD), at para. 27, Harrington J. as he then was considered thedistinction between credibly-based probability and mere suspicion. He cited with approval the Nova Scotia Court of Appeal decision inR. v.

Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.): [27] In Morris, a list of key elements was outlined to determine the existence of “credibly based probability” versus mere suspicionwith regard to the contents of an ITO grounding a search warrant in circumstances akin to those in this Application: 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 thatan offence 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 documentswithout legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.” (Sanchez,supra, at 364) (iii) The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in thetotality of circumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v.

Yorke (1992), (NSCA), 115 N.S.R. (2d) 426 (C.A.); aff’d, (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 andis to be 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 tipfrom an 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 whatthis entails. 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. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. 31 The fundamental point is that these specific propositions define the basic justification for the search: the existence of“credibly-based” probability that an offence has been committed and that there is evidence of it to be found in the place of search. [27] Garofoli confirms that a search warrant may issue on the basis of the hearsay statements of a single informant, providing thatthe tip is reliable.

Reliability is to be assessed by considering factors such as the detail of the tip, the informer’s source of knowledge,

and indicia of the informant’s reliability, such as past performance or information from other investigative sources. [ 28 ] The decision of the Nova Scotia Court of Appeal in R. v. Durling , 2006 NSCA 124 , 249 N.S.R. (2d) 229 provides an example of where confirmation of an anonymous tip by information from other investigative resources was sufficient to support issuing a search warrant. A tip had come from an unproven anonymous source and was the only evidence of a crime. The reviewing judge had quashed the search warrant on the basis that the information in the ITO was insufficient.

The judge acknowledged that some information did in fact corroborate the tip regarding illegal activity, including a Forward Looking Infrared device (“FLIR”) report and covered basement windows discovered by police, where the tipster alleged, on the basis of first-hand observations, the growing marijuana could be found. [ 29 ] On appeal, the appellate court applied the Garofoli test and concluded that the evidence rose above the level of suspicion and established a credibly-based probability of an offence.

The Court noted the tipster had been specific as to the suspect’s identity, her phone number, her employment, the location of her residence, and the fact that the premises were leased. This had all been corroborated by the police. Also, the tipster had reported personal knowledge as opposed to hearsay. In addition the FLIR results were probative as to increased heat coming from the basement, which corroborated the tipster’s report, as did the covered basement windows. [ 30 ] This Court in R. v.

Saunders , 2003 NLCA 63 , 232 Nfld. & P.E.I.R. 22, at para. 9 , stressed the importance of remaining focused on the supporting affidavit as a whole, rather than parsing and microscopically examining the words, phrases or paragraphs in isolation. The Crown had submitted that the reviewing judge had picked apart the ITO word by word and failed to consider that inadequacies in some parts were made up for by other sections. The majority in this Court stated: [9] In this, we are in full agreement with the Crown.

The trial judge “deconstructed” every paragraph (and many phrases within paragraphs) in the information to obtain, concluding that virtually every paragraph suffered from some inadequacy. An example of this is the trial judge’s analysis of paragraph 7 of the information to obtain, which reads: That Constable Martin JOBIN, a member of the Royal Canadian Mounted Police, Deer Lake, Newfoundland, has personal knowledge, through police investigations, and informant information that Glen SAUNDERS B:54-01-04 lives at 37 Middle Road, Deer Lake, Newfoundland.

The appellate court noted how the reviewing judge had expressed difficulty with this statement because the ITO did not explain how the police officer had obtained the information regarding the address. The court pointed out this lack of explanation did not really matter. The important thing was to assess the sufficiency of the information in the “totality of the circumstances”. [ 31 ] Since the trial decision in this case, this Court has rendered a decision in R. v. Day , 2014 NLCA 14 , affirmed 2014 SCC 74 , which has some relevance for the present matter.

There the issue was whether a search was incident to a lawful arrest. The majority of this Court, for reasons approved by the Supreme Court of Canada, applied the Garofoli test to a tip received from an informant and found that the grounds for arrest were objectively, as well as subjectively, reasonable. The majority stressed that the tip provided detail, which the police verified to the extent they reasonably could and they had gained supportive information from a second source and from their own system checks. The main tipster’s information was first-hand and there were strong indicia of reliability.

The reliability of the second tipster was also very strong. The majority concluded that the trial judge erred by failing to consider the information from police system checks suggesting Mr. Day had been involved in drug trafficking in the past and, most importantly, that the trial judge failed to consider the reliability of the main source and the fact this source’s information was first-hand. Analysis of Sufficiency of Grounds 1. Compelling information [ 32 ] In the present case Source “B” gave specific and detailed information regarding the drug trafficking activity of Ms.

Whalen, including: - that she was selling prescription drugs, including Ritalin, morphine and Oxycontin; - that she was selling from her home, where purchasers would come for short visits to buy; - that people came to her front door to buy pills; - the prices charged for the pills; - how she acquired the pills; - that she kept them in a locked safe in her basement; - that shortly before the search warrant was issued Source “B” observed 10 to 15 transactions; and - that Ms.

Whalen has several hundred morphine pills at any given time and that Source “B” saw about 200 morphine pills of different strengths, with lesser quantities of Ritalin and Oxycodone, and a day later saw a larger quantity of morphine pills. [ 33 ] Source “A” gave similar information regarding the types and prices of the pills, that they were kept in a safe in the basement, and that Ms.

Whalen sold drugs out of her house. [ 34 ] If the sources were reliable, as the police informant states in the ITO, this information is compelling in that it established in specific and convincing detail, the requirements of section 11(1) of the CDSA , namely reasonable grounds to believe Ms. Whalen had contravened the CDSA by drug trafficking at a specific address, that illegal drugs were kept at that address, and that the illegal drugs would be found by a search of the residence. [ 35 ] The evidence provided does not become less compelling or convincing because the police did not carry out a longer period of

surveillance at Ms. Whalen’s residence. With respect, the trial judge either fell into palpable and overriding error in finding that thepolice surveillance as carried out did not provide useful information or erred in law in the determination of what may constitutecorroboration. [36] In the 92 minutes that the police had Ms. Whalen’s house under surveillance, no fewer than eight unknown individuals wereobserved to enter the residence and leave just a minute or so later.

Allowing for two of these to have been the Whalens and two othersnormal visitors, there were still at least four very unusually brief visits by individuals in approximately 1½ hours. On one occasion afemale was observed to enter Ms. Whalen’s porch area, receive something from another female and leave. This is consistent with theinformation supplied by the two sources regarding how the trafficking was carried out. The trial judge erred in law in concluding “therewas nothing that could be said to be probative evidence of illegal activity” and “there is no corroborative evidence of illegal activity”.

Establishing by surveillance the occurrence of activity which is consistent with that described by a source is both probative andcorroborative. 2. Credible Information [37] The police informant deposed that Source “B” had been providing information regarding criminal activity over a period of two-and-one-half years, with meetings on a weekly basis. The information provided had been consistent with information provided by othersources and had led to the arrest of between five to ten individuals. [38] Counsel for Ms.

Whalen properly points out that no evidence has been provided as to whether convictions resulted from thearrests. But while proof of convictions would enhance the credibility of the sources, lack of evidence of convictions does not, withoutmore, undermine the reliability of the information from Source “B”. [39] Source “B” is an admitted drug user and has a criminal record. This could raise some concerns about his general character.

But against this is the fact that he has been providing information to the police on a regular basis over 2½ years and has been paid onbetween one and five occasions for information received. His meetings with the police are ongoing and it is a reasonable inference that,if he had shown himself to be unreliable, he would not have been paid or be still meeting with police. The credibility of Source “B” hasbeen enhanced, also, by the fact that the information he supplied over the years has been consistent with that received from other sourcesand from police investigations.

As discussed below, the credibility of Source “B” is also confirmed somewhat by the similar evidenceprovided by Source “A”, where nothing has been provided to show any collusion between the two sources. In addition, the policesurveillance established a level of activity at the Whalen household which was consistent with the allegations of drug trafficking. [40] Poirier, following Morris, applied the principles in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at pp. 1456-57, which for convenience I will repeat. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom an 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. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. I have already discussed the considerable degree of detail of Source “B”’s information. The source of the knowledge is the personalobservation of “B”.

Indicia of the reliability of “B” are past performance over 2½ years as well as consistency with information obtainedby police from other sources and, to some extent, consistency with searches of police data bases and with the brief surveillance. [41] In addition, the information supplied by Sources “A” and “B” provides some corroboration for each other’s statements. [42] In

summary on the matter of the credibility of the information, application of the Garofoli criteria to this case leads to theconclusion that the credibility of Source “B” is strong. 3. Corroboration [43] The most compelling evidence comes from the personal observations of Source “B”. In this case the information from Source“B” alone may have been sufficient to provide grounds for the authorizing judge to issue the search warrant. However, the credibility ofSource “B” is enhanced by certain corroborative information.

First, while the statements of Source “A” must be treated as somewhat lessreliable than the information from “B” because the source of “A”’s knowledge is not as clearly established, and while the credibility of“A” has not been tested as long as that of “B” (one month compared to 2½ years), still there is some corroboration of “B” supplied by“A” because of the similarity of the information regarding the types of drugs, how they are sold, where they are stored and so forth.

There is also some corroboration from the comings and goings during the police surveillance, consistent with the brevity of thetransactions described by the sources, even allowing for the fact that much of the activity may have been nothing more than that of anormal household. At least four individuals made visits to the Whalen premises of such a short duration as to be consistent with thesources’ statements regarding the type of activity they observed. Some further corroboration of neutral facts came from the police searchof data bases, where the information of the sources regarding the address of Ms.

Whalen was confirmed, as well as the presence of Mr.Whalen and his vehicle. 4. The burden on the accused

[ 44 ] Counsel for Ms. Whalen has raised questions regarding the lack of information concerning convictions resulting from the sources’ tips and argued that very little corroboration has been provided regarding the elements of the criminal activity other than corroboration of one potentially unreliable tipster by another. Ms. Whalen’s burden is to establish that no basis existed for the decision by the authorizing judge to issue the search warrant.

That is to say that the information in the ITO did not meet the standard of “reasonable probability that evidence of an offence being committed would be found” in the Whalen house ( Morelli ). [ 45 ] In considering whether a basis existed for issuing the warrant in the present case it is important to note the strength of the information from Source “B”, whose detailed information of drug trafficking came from personal observation, who had exhibited reliability over 2½ years, and whose tips had been consistent with other sources and with police investigations over that period. [ 46 ] The trial judge, with respect, did not properly apply the law as set out in Garofoli , applied in Grant and Araujo , and confirmed recently in Morelli .

She did not ask whether there was “any basis” ( Garofoli , p. 188) for the decision of the authorizing judge. That basis may be found in the information from Source “B”, which was not weakened by anything raised by the respondents.

Instead the trial judge, as in Durling , substituted her opinion for that of the authorizing judge and identified areas where she herself would have wished fuller information following “an independent police investigation which confirms the source information and which provides corroboration beyond information which would be general public knowledge such as the residence of a suspect or vehicle ownership” (para. 18 of the trial decision). [ 47 ] It is not the law that police must always by independent investigation confirm the source information or provide corroboration of it.

Garofoli establishes that hearsay statements of an informant, such as from Source “B” in this case, may be the basis for reasonable grounds to justify a search provided assessment of “the totality of the circumstances”, such as the degree of detail of the tip, the source of the informer’s knowledge, and indicia of the tipster’s reliability enables the issuing authority to conclude a credibly-based probability exists that evidence with respect to the commission of an offence may be found at a particular place and at a particular time. [ 48 ] The trial judge questioned whether the information in the ITO was sufficient to establish reasonable grounds to believe that drugs would be present at the designated premises on the day the warrant was executed.

But the information from Source “B” was that Ms. Whalen made a point of keeping her stash “topped up” so that she had a continuous supply to maintain a regular ongoing business of drug trafficking. It was a reasonable inference that illegal prescription pills would be found at Ms.

Whalen’s house the day after the warrant was issued. [ 49 ] As for confirmation or corroboration of the source information by evidence going beyond “general public knowledge”, the reference by both Source “A” and “B” to drugs and money being kept in a safe in the basement moves the corroboration evidence beyond general public knowledge, as did the specific details regarding the types of pills. [ 50 ] When assessing information from an informant, police surveillance often provides helpful corroboration.

However, courts must be conscious of the finite resources available to our police services and not require longer periods of surveillance than may be necessary to confirm a tip is reliable. [ 51 ] As noted in Hunter , para. 43 , “The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.” Source “B” supplied information which, considered with the other information, reached that point and permitted the authorizing judge to conclude it was sufficient to establish reasonable grounds to support issuing a search warrant.

The trial judge erred by quashing it. The evidence here was stronger than in Durling . Source “B” was not anonymous but known to the police over 2½ years with proven reliability. There was little corroboration of illegal activity in either case, but corroboration of neutral, detailed facts did enhance the reliability of both sources. As in Day , the reliability of Source “B” was enhanced by the degree of detail in the tip, the firsthand knowledge, and past performance. 5. Conclusion on sufficiency of grounds [ 52 ] The evidence discussed above was compelling, credible and corroborated.

In the totality of the circumstances, it reached the point where credibly-based probability replaced suspicion. There was sufficient credible and reliable information in the ITO to justify the Provincial Court judge finding reasonable grounds to believe an offence was being committed and that evidence of that offence would be found at the specified time and place. Therefore, the search warrant was quashed in error. There was no breach of

section 8 of the Charter and no basis on which to exclude the evidence. B. Section 24(2) of the Charter [ 53 ] In light of my conclusions regarding the validity of the search warrant, I need not deal with the question of the proper remedy under section 24(2) of the Charter . C.

Summary and Disposition [ 54 ] In

summary: (

i) The trial judge erred in quashing the search warrant. The respondents did not meet the burden of establishing that the information in the ITO was insufficient to support the grounds for issuing the warrant. (ii) The search warrant was valid and there was no breach of the respondents’ Charter rights and no basis to exclude the evidence found on the search. (iii) The appeal is allowed and the matter is remitted for a new trial.

__________________________________ L. D. Barry J.A. I Concur: _________________________________ B. G. Welsh J.A. I Concur: ________________________________ L. R. Hoegg J.A. Correction Notice: Correction made on March 2, 2015: 1. On page 54 in paragraph [54](iii) “The appeal is allowed and the matter is remitted to the Trial Division for a new trial.” was replaced with “The appeal is allowed and the matter is remitted for a new trial.”