R. v. Mitchell, 2020 NLSC 121

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Mitchell , 2020 NLSC 121 Date : September 11, 2020 Docket : 201906G0002 Her Majesty The Queen v. Mazie Mitchell Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearings: July 17 and August 6, 2020 Date of Oral Judgment: September 11, 2020

Summary: The Applicant sought to exclude evidence obtained from a search of her business on the basis that the search warrant was invalid. She alleged that the information presented to the judge who authorized the warrant under the Controlled Drugs and Substances Act was insufficient. The Court found that the authorizing judge had sufficient credible and reliable evidence before him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the business. Accordingly, the search warrant was validly issued. The Court also found that the search warrant authorized the search of a storage room used by the business.

Appearances: Glen W. Picco, Q.C. Appearing on behalf of the Crown Donald A. MacBeath, Q.C. Appearing on behalf of the Applicant Authorities Cited: CASES CONSIDERED: Quebec (Attorney General) v. Laroche, 2002 SCC 72; R. v. Araujo, 2000 SCC 65; R. v. Morelli, 2010 SCC 8;R. v. Grant, (SCC), [1993] 3 S.C.R. 223; R. v. Saunders, 2003 NLCA 63; R. v. Greffe, (SCC), [1990] 1S.C.R. 755; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; Hunter et al. v. Southam Inc., (SCC), [1984] 2S.C.R. 145; R. v. Simmonds, 2010 NLTD(G) 150; R v. Coady, 2009 NLTD 108; R. v. Hutchings (2012), 329 Nfld. & P.E.I.R. 56, 104W.C.B. (2d) 131 (N.L. Prov. Ct.) STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Controlled Drugs and Substances Act, S.C. 1996, c. 19 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] This is an application pursuant to

section 8 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, (the “Charter”). The Applicant is charged with possession ofcocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the“CDSA”). The Applicant was charged jointly with her husband, Brent Adams, but the charge against him has been dismissed. [2] Evidence that the Crown relied on in support of the charge (specifically, cocaine wrapped in small packages) was seized whenthe police executed a search warrant at the business of Brent Adams, Chase’s Diner, situated at 224 Creston Blvd., Marystown.

In thisapplication, the Applicant challenges the validity of the search warrant. She says that the information presented to the judge whoauthorized the search warrant did not disclose reasonable and probable grounds that the alleged offences had been committed and thatillegal drugs or other items to be searched for were in Chase’s Diner. She argues that the warrant has no validity because it should nothave been issued and that the search of Chase’s Diner was effectively a warrantless search. She also argues that the area in which thedrugs were found was not within Chase’s Diner.

She wants the evidence excluded on the grounds that her

section 8 Charter rights to besecure against unreasonable search and seizure has been violated. FACTS [3] The parties agree that the Applicant has standing to bring the present application and that she had a privacy interest in Chase’sDiner. In her application, the Applicant states that she operated the businesses of Chase’s Diner and Chase’s Lounge with her husband. The businesses were operated in adjacent spaces in the same building.

There were other tenants in the building. [4] The record before me includes the preliminary inquiry transcript and exhibits, an Information to Obtain a search warrant (ITO)sworn by Cst. Darren Coady of the Royal Canadian Mounted Police (“RCMP”) on May 23, 2018, and the search warrant issued on thesame date. The search warrant was issued pursuant to

section 11 of the CDSA. The ITO included information supplied to police byunnamed sources A, B and C, information related to the credibility and reliability of these sources, and information obtained by Cst.Coady from computerized databases related to the Applicant, her husband and a third person identified in the ITO. [5] Acting under the authority of the search warrant, the RCMP discovered and seized a mason jar, which contained six smallbags of cocaine weighing a total of 13.4 grams, and a plastic grocery bag, which contained 17 packages of cocaine weighing a total of52.9 grams.

These items were all found in a storage room. The mason jar was found in a Rubbermaid container and the grocery bag wasfound behind a ceiling tile. [6] The ITO, as initially disclosed to the Applicant, had portions redacted by the Crown based on informer privilege. Prior to thehearing, the Crown provided a further copy of the ITO with less information redacted because the Crown determined that furtherinformation could be disclosed without identifying confidential informers. Additionally, at the hearing, the Crown provided a

summaryof some of the redacted information, in particular that certain redacted information identified a quantity of cocaine or a time ofobservation.

ISSUES [7] There are three issues: i. Was there sufficient credible and reliable evidence for the judge who authorized the search warrant to findreasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found atChase’s Diner? ii. Did the search warrant authorize the search of the storage room? iii. If the answer to either question i. or ii. is “no” and a

section 8 Charter violation has been established, thenshould the remedy be exclusion of the evidence? [8] For the reasons that follow, I have concluded that the Provincial Court Judge had sufficient credible and reliable evidencebefore him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offencewould be found at Chase’s Diner. Accordingly, the search warrant was validly issued. I have also concluded that the search warrantauthorized the search of the storage room[1].

As such, the Applicant’s application is dismissed and there is no need to address the thirdissue. Issue 1: Sufficiency of the ITO Applicable Law [9] The Applicant bears the burden of proving to the Court, on a balance of probabilities, that she has suffered a breach of herCharter rights to protection from unreasonable search and seizure (Quebec (Attorney General) v. Laroche, 2002 SCC 72, at paragraph67). [10] As the reviewing judge, I am not to substitute my view on the sufficiency of the ITO for that of the judge who authorized thesearch warrant.

The test on review is whether there was sufficient credible and reliable evidence presented to the authorizing judge onthe basis of which the authorizing judge could have found 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 (see R. v. Araujo, 2000 SCC 65, atparagraphs 52 and 54, and R. v. Morelli, 2010 SCC 8, at paragraph 40). If the grounds are such that the authorizing judge could haveissued the warrant, then I should not interfere (R. v.

Grant, (SCC), [1993] 3 S.C.R. 223 at page 251). [11] Our Court of Appeal applied this test in R. v. Saunders, 2003 NLCA 63, and found that the search warrant in that case had beenvalidly issued. The facts of Saunders have similarities to this case: the accused challenged the sufficiency of an ITO for a search warrantissued under the CDSA where most of the information relied on was obtained from three unnamed sources.

At paragraph 11 ofSaunders, the Court of Appeal indicated that the adequacy of the ITO in establishing the reasonable grounds must be assessed in thetotality of the circumstances, rather than by a paragraph by paragraph deconstruction or critique of the ITO. The Court of Appeal usedthe metaphor of a painting: the proper approach is not to simply view the painting square centimetre by square centimetre to identifydefects, rather it is essential to step back and view the painting as a whole.

The assessment must still include an independent inquiry intothe source and reliability of the confidential information found in the ITO in order to determine whether, in the totality of thecircumstances, there existed reasonable and probable grounds (R. v. Greffe, (SCC), [1990] 1 S.C.R. 755, at paragraph24). [12] In Saunders, the Court of Appeal reiterated the legal principles for review of an ITO, especially when confidential sources areused. These come from R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paragraphs 81 to 85:

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. [13] Relying on Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, the Court of Appeal framed the questionat paragraph 14 of Saunders as: Could a justice of the peace, based on the ITO, have found that credibly-based probability had replacedsuspicion?

Analysis of the Sufficiency of the ITO [14] Taking guidance from Saunders, it is helpful to review the source information in the ITO chronologically to assess the totalityof the circumstances: i. On February 16, 2018, Source C told police that Brent Adams is selling cocaine from his business Chase’sDiner. ii. On February 22, 2018, Source A told police that a named individual, whom I shall refer to as P.R., will be

selling cocaine for Brent Adams while he is down south on vacation and that P.R. has been delivering cocaine around Marystown for Brent Adams. iii. On February 28, 2018, Source B told police that P.R. is selling cocaine for Brent Adams and that the cocaine is kept at Brent Adam’s business Chase’s Diner. iv. On February 28, 2018, Source A told police that P.R. will be selling cocaine from Chase’s Diner while Brent Adams is away on vacation, that P.R. is selling only eight balls (an “eight ball” is identified in the ITO as being a street term for 3.5 grams of cocaine).

Source A also advised that Brent Adams had a quantity of cocaine at Chase’s Diner within the last 24 hours and hides his cocaine in the storage room behind the kitchen diner. v. On March 2, 2018, Source C told police that Brent Adams has someone selling cocaine for him who is selling eight balls while Brent Adams is gone. vi. On March 5, 2018, Source B told police that P.R. is selling cocaine for Brent Adams and that if you want cocaine from P.R. you call him and he goes to Chase’s Diner to get it. Source B also advised that P.R. is driving Brent Adam’s old snow plow. vii.

On March 5, 2018 Source A told police that P.R. sold all Brent Adam’s cocaine this weekend and that Brent Adams [information redacted] cocaine before returning to Marystown. viii. On March 13, 2018, Source A told police that Brent Adams is in possession of cocaine at Chase’s Diner and that he is selling cocaine from Chase’s Diner. ix. On March 15, 2018, Source A told police that Brent Adams is keeping his main supply of cocaine at his residence and that Brent Adams met P.R. at Chase’s Diner to give him cocaine. x.

On March 19, 2018, Source C told police that Brent Adams is selling cocaine out of Chase’s Diner and that he is only selling eight balls of cocaine. xi. On March 26, 2018, Source A told police that Brent Adams is selling a lot of cocaine over the weekends. xii. On March 27, 2018, Source A told police that Brent Adams and Mazie Mitchell are in possession of a large quantity of cocaine at Chase’s Diner within the last 24 hours and that Brent Adams and Mazie Mitchell are running back and forth between their residence and Chase’s Diner multiple times a day. xiii.

On March 27, 2018, Source A told police that Brent Adams has a quantity of cocaine at Chase’s Diner and that Source A observed cocaine hidden in the storage room at Chase’s Diner on this date. xiv. On April 11, 2018, Source A told police that Brent Adams was busy selling cocaine this past weekend and that there is a quantity of cocaine at Chase’s Diner. Source A also advised that Brent Adams sold [information redacted; it is a quantity] cocaine this past weekend. xv. On May 3, 2018, Source A told police that Brent Adams is in possession of a quantity of cocaine at Chase’s Diner within the past 24 hours.

Source A observed [information redacted; it is a quantity] cocaine hidden in the storage room at Chase’s Diner at [information redacted; it is the time Source A observed it] on May 3, 2018. xvi. On May 8, 2018, Source A told police that Brent Adams is in possession of a quantity of cocaine at Chase’s Diner within the past 24 hours. Source A observed [information redacted; it is a quantity] of eight balls of cocaine hidden in the back room at Chase’s Diner on this date. xvii. On May 11, 2018, Source A told police that Brent Adams is in possession of a quantity of cocaine at Chase’s Diner within the past 24 hours.

Source A observed [information redacted; it is a quantity] of eight balls of cocaine hidden in the back room at Chase’s Diner on this date. xviii. On May 23, 2018, Source A told police that Brent Adams is in possession of a quantity of cocaine at Chase’s Diner within the past 24 hours. At [information redacted; it is the time Source A observed it] on May 23, 2018, Source A observed [information redacted; it is a quantity] of eight balls of cocaine in a mason jar hidden in the storage room at Chase’s Diner. [ 15 ] In each case, the sources did not speak directly to Cst. Coady but to other RCMP officers.

The other officers are named in the ITO and the date on which they told the information to Cst. Coady is also identified. [ 16 ] The picture created by the information from the three sources is that for just over a three-month period preceding the execution of the search warrant, Brent Adams was selling cocaine from Chase’s Diner. Two of the sources (A and

B) indicated that cocaine was being stored at Chase’s Diner. All three sources identified a third party as selling cocaine for Brent Adams in early March while Brent Adams was away. Two of the sources identified that third party as P.R. (A and B). Two of the sources (A and

C) identified the cocaine as being sold in eight balls. [ 17 ] Next it is helpful to review some of the indicators of reliability in the ITO, keeping in mind the factors identified in Garofoli :

i) Past performance of Source A . Source A has been an informant for 12 years and has been providing information to Cst. Green specifically for four years. It is Cst. Green who gave Cst. Coady the information from Source A. Source A is paid for information but has not received any other benefits or promises. Source A does not have a criminal record but associates with those involved in the drug trade and is a drug user. Source A has provided information to Cst. Green on approximately 100 occasions. Information from Source A

has resulted in “numerous” CDSA warrants being executed and has also provided information on occasions that has not been acted upon for safety reasons or to preserve Source A’s identity or to keep an investigation from being compromised. Cst. Green believes the information of Source A to be reliable. ii) Past performance of Source B . Source B has been an informant for three years and has provided information to Cst. Mitchell on numerous occasions during that period. It is Cst. Mitchell who gave Cst. Coady the information from Source B.

Source B is paid for information and wants to better the community but has not received any other benefits or promises. Source B does not have a criminal record but associates with those involved in the drug trade and is a drug user. Source B has provided information to Cst. Green on numerous occasions. Information from Source B has resulted in CDSA warrants being executed where searches were positive and Source B has also provided information on occasions that has not been acted upon for safety reasons or to preserve Source B’s identity or to keep an investigation from being compromised. Cst.

Mitchell believes the information of Source B to be reliable. iii) Past performance of Source C . Source C has been an informant for only one month and has provided information to Cst. Mitchell four times during this period. It is Cst. Mitchell who gave Cst. Coady the information from Source C. Source C is paid for information but had not received any other benefits or promises. Source C does not have a criminal record but associates with those involved in the drug trade and is a drug user. Information from Source C has been consistent with other “proven reliable” source information. Cst.

Mitchell believes the information of Source C to be reliable. iv) Degree of detail . The information from Source C is not detailed. The information from Source B is a little more so, in that P.R. is named and there are more details provided as to how to purchase cocaine from P.R. and what he is driving. The information from Source A, however, is quite detailed. Source A provides times Source A observed cocaine at Chase’s Diner, the quantity of cocaine that was observed, where it was hidden, and in one instance, that it was stored in a mason jar.

Source A also provides the only details about the Applicant’s involvement.

v) Source of Information . In the case of all three sources the ITO indicates that the information provided by the source is “from first- hand knowledge unless otherwise stated”. The ITO also states for each that “first-hand knowledge is information [the source] heard or observed directly from the persons(

s) in which [the source is providing information].” The information as to source is much stronger for Source A. For much of the information provided by Source A, the ITO specifically states that Source A observed it and gives the time, or at least the date, and the place of the observation. For Source A there is ample information provided to support the statement that the observations were first-hand. vi) Confirmation from other investigative sources . The police did not conduct any surveillance of Chase’s Diner in an effort to corroborate the source information.

There is, however, some corroboration from other investigative sources. For example, in reference to the information that P.R. would be selling cocaine for Brent Adams while he is down south on vacation, the ITO states that Cpl. Anthony McKinnon confirmed with the Canadian Border Services Agency (CBSA) that Brent Adams and Mazie Mitchell did leave Canada. Although it would be preferable to have more detail, such as when Cpl. McKinnon confirmed with CBSA and what the dates of travel were, this is some corroboration of the information provided by Sources A and C that Brent Adams was away for a period.

Also, in the ITO Cst. Coady states that on January 9, 2016 he was dispatched to a call from an employee of Chase’s Diner of suspicious activity at the restaurant. While responding to the call, Cst. Coady reports that the employee took him into a back storage room behind the dining room and kitchen area of Chase’s Diner and that the employee described the area to him as an area used by Chase’s Diner. Although, Cst. Coady’s visit to the premises was over two years previously, his information provides some corroboration to Source A’s information about the cocaine being stored in the storage room at Chase’s Diner.

There is also some, albeit limited, confirmation from the databases that Cst. Coady consulted including the Police Reporting and Occurrence System (PROS) which, according to the ITO, is a database maintained by the RCMP in Ottawa that records information collected through the normal course of police investigations. Cst. Coady’s PROS search revealed that Brent Adams has been the subject of approximately a dozen anonymous or confidential complaints for drug trafficking or investigations of drug trafficking from May 2010 to February 2018.

The date and details of each complaint or investigation is provided in the ITO. Most of them involve cocaine. A couple of them name Chase’s Diner and a couple of them implicate the Applicant as well. Of note, PROS indicates that on March 29, 2018 (during the period of the source information in the ITO) confidential information was received that Brent Adams was going to St. John’s to pick up a supply of cocaine to sell in the Marystown area. Surveillance was conducted and Adams was observed meeting with a male in the area of the Health Sciences Centre.

Adams was observed obtaining a container from a male in a vehicle with a specified Newfoundland and Labrador (NL) licence plate which was placed in the rear of the truck being driven by Adams having a NL licence plate which was confirmed by Cst. Coady to be registered to Brent Adams using the Motor Registration Division database for Newfoundland and Labrador. PROS also indicated that the Applicant was the subject of a complaint for trafficking cocaine on two files between July 29, 2011 and November 22, 2013 and on a third on March 29, 2019.

She was also identified as the owner and victim of a property crime for robbery with an offensive weapon at Chase’s Diner twice: in September 2012 and in March 2017. There were also numerous entries in PROS for P.R. related to cocaine trafficking and a conviction for possession of a controlled substance on October 26, 2011. In the ITO, Cst.

Coady attests that he believes the information he received from PROS to be reliable and accurate, however, it is important to note that there is nothing in the ITO to assist the authorizing judge in assessing the reliability or accuracy of the various complaints listed in PROS. It is mostly dated information of unknown reliability. As such, its confirmatory value is very limited. However, it is not valueless information and it does form part of the overall picture presented in the ITO. [ 18 ] The ITO is not perfect. Ms.

Mitchell has raised a number of weaknesses, which I must consider. [ 19 ] To begin, the information on the success rate for Source A’s information previously, that it has resulted in “numerous” CDSA warrants being executed, is vague and there is no indication of the outcomes of the searches for any of these numerous warrants. Although it would have been far preferable for the authorizing judge to know the number of warrants and the outcomes of the searches, I do not find this omission fatal to Source A’s reliability. Past performance is only one indicia of reliability. The detail of the

information is another and Source A provided detailed information including names, dates, times, type of drug, amounts of drugs, location details and, on the most current occasion, storage container. While the fact that a mason jar was found during the search cannot ex post facto provide evidence of the reliability of the search, that type of specific information from a source adds to its reliability.

Source A’s information is from personal knowledge and the ITO specifically identifies time, date and place of certain of Source A’s observations, most importantly for the most current information which was day of the search. Additionally, Source A’s information is corroborated in a number of aspects by the other sources (for example, type of drug, location, quantities for sale, involvement of P.R.). In Saunders , the Court of Appeal affirmed that information from different sources can be corroborative inter se , making the whole of their information greater than the sum of its parts (see paragraph 15). [ 20 ] Ms.

Mitchell also raises as a concern that the information from Sources B and C is dated and too vague to be characterized as anything more than gossip or rumour. I agree that the information from Source C is not detailed and, on its own, would be of no value. The information from Source B is more detailed, as I have noted above, but still I would not find that information sufficient on its own. However, I find that the information from both of these sources enhances the reliability and the usefulness of the information provided by Source A.

Firstly, although the information from both sources is not current enough to establish reasonable and probable grounds that evidence of trafficking could be found at Chase’s Lounge on May 23, 2018, the information is all within approximately three months prior to the search. The information from Source B and C forms part of the narrative that is consistent with the more current and detailed information provided by Source A. [ 21 ] A similar finding was made by Goodridge, J. (as he then was), in R. v. Simmonds , 2010 NLTD(G) 150. In Simmonds , there were three sources supporting an ITO.

One provided detailed and current information. A second provided less detailed information that was obtained over two years prior to the search. The third provided generalized information that was obtained three months prior to the search. Goodridge, J. found that the information of the latter two sources was useful in assessing the overall reliability of the ITO because it formed part of a narrative that was consistent with the more detailed and current information provided by the first source.

As he noted at paragraph 19: Assessing the overall reliability of an ITO does not require every source be perfect, relevant and current. As indicated in Saunders , the judge must assess reliability from the totality of the circumstances. Only one current source might be adequate, depending on the circumstances. [ 22 ] There are other indicators of reliability for both Sources B and C in the ITO. Source B has a proven history of reliability having provided information that resulted in CDSA search warrants with positive results. Past performance is a factor that the authorizing judge may consider for reliability.

Evidence of Source C’s past performance is less compelling. Source C had only been an informant for one month and had only provided information four times. Source C is stated to have provided information that “is consistent with other proven reliable source information”, and although such a general statement is of limited assistance to the authorizing or reviewing judge, it forms part of the overall picture the authorizing judge had to assess. [ 23 ] Both Sources B and C were stated to have provided information from first- hand knowledge unless otherwise stated (and it was not otherwise stated).

For all three sources, the ITO states that first-hand knowledge is “information that [the source] heard or observed directly from the person(

s) in which [the source] is providing information”. Ms. Mitchell argues that this language is boiler-plate and of no assistance. Trial judges have been cautioned against the potential mischief that boiler-plate language can cause. In Araujo , the Supreme Court of Canada said at paragraph 47: A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers.

At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong — and much right — with an affidavit that sets out the facts truthfully, fully, and plainly .

Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. [emphasis in original] [ 24 ] It is preferable to have more detailed information to establish the source of confidential information, such as particulars as to when, where or how the observations were made. More detail was provided with respect to Source A’s observations, which enhances the reliability of Source A’s information.

However, I cannot say that the more general statement of it being first-hand knowledge of Source B and Source C is of no assistance. The wording is awkward but there is nothing in the record before me to suggest it is misleading or inaccurate. Similar wording was found in Simmonds to be adequate disclosure of each informer’s source of knowledge (see paragraphs 16 and 22). [ 25 ] Ms. Mitchell also raises the concern that the ITO was not supported by affidavits of the RCMP source handlers, who obtained the information directly from the sources, but rather just by the sworn statement from Cst.

Coady who obtained the information from the source handlers. This issue was addressed by the Supreme Court of Canada in Araujo at paragraph 48 : Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers. This would strengthen the material by making it more reliable.

In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants. [ 26 ] However, not having an affidavit directly from the source handlers is not fatal. Here, Cst. Coady identified the officers who told him the information and the date on which they told him. In each case, the officer who told Cst. Coady was the source handler.

This additional information in the ITO makes it more reliable despite it not being supported by direct affidavits from the source handlers. [ 27 ] The Applicant also raises the concern that the police did not conduct any surveillance in an attempt to corroborate the source

information. Surveillance can be a useful tool for the police to corroborate confidential source information. However, not having done surveillance is not necessarily fatal, as all the circumstances of the ITO must be assessed. The fact is that surveillance was not done, and that also forms part of the picture that the authorizing judge had to assess. [ 28 ] Having considered all of the circumstances, including the concerns raised by Ms. Mitchell, I am satisfied that the ITO was sufficient for the authorizing judge to conclude that credibly-based probability had replaced suspicion.

The information from Source A was current, detailed, based on first-hand observation and corroborated by the information from Source B and Source C. There was significant indicia of reliability for Source A and sufficient indicia of reliability for Source B and Source C.

When I stand back and assesses the picture painted by the ITO as a whole, even without police surveillance, I am satisfied that the authorizing judge could have found that credibly-based probability had replaced suspicion. [ 29 ] Generally, this case is more like the cases of Saunders and Simmonds , where the search warrants were upheld, than in the cases cited by the Applicant: R. v. Coady , 2009 NLTD 108 and R. v. Hutchings (2012), 329 Nfld. & P.E.I.R. 56, 104 W.C.B. (2d) 131 (N.L. Prov. Ct.) . In Coady , a warrant was issued for a private residence based on confidential informant information.

Most of the information in the ITO was over three months old, some of it nearly 18 months old. The only current information was not clear that the drugs described were on the premises the day the source reported to police (see paragraph 38). In Coady , the reviewing judge was critical that the police had not done any independent investigation of the information provided.

While I agree with the analysis in Coady that the extent to which the police have conducted or attempted to conduct independent investigation of confidential source information is relevant, in the particulars of the present case, I cannot say that surveillance was necessary. [ 30 ] In Hutchings , information came from an anonymous tip and two confidential sources. The information was not detailed. Different drugs were named by the different sources, no amounts of drugs were specified, nor were any details as to packaging or storage.

The reviewing judge in Hutchings found that police had not done anything to determine if the accused lived at the target residence and it was even unclear as to whether the two sources were referring to the same residence. Again, the facts in Hutchings are different from those of the present case, most significantly because the source information all lacked detail and could not be said to be corroborative inter se . [ 31 ] The ITO is not perfect and there are a number of places where more specific or detailed information would have been useful.

More effort by the police to independently corroborate the source information would also have been useful. However, in the whole, I find that the grounds are such that the authorizing judge could have properly issued the warrant and thus I will not interfere. Issue 2: Search of the Storage Room [ 32 ] The search warrant authorized the search of the “business of Brent Adams, Chase’s Diner situated at 224 Creston Blvd., Marystown, NL including: i.

All of vehicles known to be used or accessible by Brent Adams and Mazie Mitchell located at this location.” The search warrant also included a picture of the building in which a sign for Chase’s Diner is visible over one of the exterior doors. Other signs, presumably for other businesses, are visible over other exterior doors. [ 33 ] The Applicant is not challenging the validity of the search warrant for failing to accurately describe the premises of the search, but rather states that the search warrant did not authorize the search of the storage room.

The Applicant did not file any case law in relation to this argument, nor did her counsel point me to any specific evidence that would distinguish the storage room from other areas of the business, such as the kitchen. In her Application, the Applicant states that “the storage area was not part of either Chase’s Diner or Chase’s Bar” but she has not provided any evidence to support this statement. [ 34 ] There is evidence related to the storage room from the preliminary inquiry, which formed part of the record before me for this application.

Three police officers referred to a storage room, a back storage area and a back storage room in their testimony. All references are to the same area as best as I can ascertain. All officers appear to have considered it as a storage room used by Chase’s Diner and it was accessible through the kitchen of that business. From the preliminary inquiry evidence and the pictures, the storage room contains coolers, fridges, furniture, a container of plastic cutlery and a lot of other odds and ends.

The storage room is not only accessible from Chase’s Diner’s kitchen, however, as there are other ways of accessing it including from the basement. There was no written lease or other evidence to establish the area of the larger building that was used by Chase’s Diner. [ 35 ] There is also reference to the storage room in the ITO. Source A refers to cocaine being stored or hidden in the “storage room behind the kitchen diner”, in the “storage room at Chase’s Diner” and in the “back room at Chase’s Diner”. Cst.

Coady also reported in the ITO that in 2016 an employee of the business took him into a back storage room behind the dining room and kitchen area of Chase’s Diner and that the employee described the area to him as an area used by Chase’s Diner. [ 36 ] There is no evidence before me to establish that the search warrant did not authorize the search of the storage room. While the evidence might establish that the storage room was accessible to people who were not involved in the business; that is not enough.

The evidence all links the storage room to the business of Chase’s Diner, a business the Applicant states that she operated with her husband. Given that the most current and detailed information in the ITO identified the storage room as the location of the drugs, as counsel for the Crown has noted, it would make little sense for the search warrant not to authorize that area for search. [ 37 ] As a result, I find that the search warrant authorized a search of the storage room accessible through the kitchen at Chase’s Diner.

DISPOSITION [ 38 ] The Applicant has not established that she has suffered a breach of her Charter right to protection from unreasonable search and seizure. For the foregoing reasons, I find that the authorizing judge had sufficient, credible and reliable evidence before him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at Chase’s Diner. Accordingly, the search warrant was validly issued. I also find that the search warrant authorized the search of the storage room.

As such, the Applicant’s application is dismissed and there is no need to address the possible exclusion of the seized evidence.

_____________________________ Katherine O'Brien Justice