R. v. Chipman, 2020 NSSC 354

SUPREME COURT OF Nova Scotia Citation: R. v. Chipman , 2020 NSSC 354 Date: 2020-10-16 Docket: Sydney , No. 484379 Registry: Sydney Between: Her Majesty the Queen v. Ryan Matthew Chipman Judge: The Honourable Justice Robin Gogan Heard: Friday, September 4, 2020, in Sydney, Nova Scotia Counsel: Vince Gillis, QC, for the Applicant David Iannetti, for the Respondent Crown By the Court (Orally): Introduction [ 1 ] On May 17, 2018, the Cape Breton Regional Police obtained a Warrant to search the dwelling, barn, garage and property of Ryan Matthew Chipman at 167 Fairhaven Drive, Nova Scotia.

The Warrant was obtained on the basis of an Information to Obtain (ITO) sworn by Detective Constable John P. Campbell on the same day as the search. As a result of the search, 3491 grams of cannabis marijuana, 31 vials of THC liquid vapour, 5 packages of cannabis shatter, 12 packages of THC gummies, 13 capsules of THC, and 6 MDMA tablets were seized. [ 2 ] Ryan Matthew Chipman is now charged with five counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and one count of unlawful possession contrary to s. 4(1).

The trial is scheduled to proceed on December 14, 15 and 16, 2020. [ 3 ] Mr. Chipman now brings an application to exclude all evidence obtained from the search conducted on May 17, 2018. He says that his s. 8 Charter rights were violated as a result of the insufficiency of the ITO on which the search warrant was issued. [ 4 ] The hearing of this application took place on September 4, 2020. Detective Constable Campbell testified and was cross- examined. Both the Information to Obtain and the Search Warrant are before the Court as Exhibits . [ 5 ] What follows is my decision on the Charter motion.

Overview of the Evidence [ 6 ] The evidence in this case comes from the ITO itself and the testimony of Detective Constable Campbell. Issues [ 7 ] The issue to be determined here is whether the ITO was sufficient to ground the subsequent warrant. The real issue is whether the information provided by a single confidential source is sufficient, especially when the deponent of the ITO made an error in corroborating the source information. [ 8 ] If the ITO was not sufficient, then should the evidence obtained be excluded from evidence at trial under s. 24(2) of the Charter .

Position of the Parties Ryan Matthew Chipman [ 9 ] The applicant says the ITO is insufficient. It relies on non-specific information provided by a single source and information

that is not always on the personal knowledge of that source. There is no information in the ITO about the source’s associate on which toassess reliability. Detective Constable Campbell says that the source is reliable but provides only a bare assertion that the sourceinformation has been corroborated and is believed to be reliable.

More is required. [10] The Applicant makes repeated complaint that most of the information provided by the source is more than ten days prior to theITO and search which the applicant says “is a lifetime when one is balancing the interests of the state versus the charter protectedprivacy rights of the Applicant”. He submits that it is too dated to be current, specific and compelling.

Even viewed from the totality ofcircumstances, there is not a sufficient basis to say that the Justice of the Peace had the requisite reasonable and probable grounds. [11] Finally, the applicant raises an issue with errors in the information provided by Detective Constable Campbell as corroborationto the source information. Mr. Chipman says that the information about his search of the NICHE system was wrong and misleading. Atbest, the officer was negligent. Such conduct must not be condoned. It colors the ITO and the process generally and the evidenceobtained must be excluded under s. 24(2).

The Crown [12] The Crown’s position is that the ITO, when viewed as a whole, contains sufficient credible and reliable information such thatthe Justice of the Peace could find reasonable and probable grounds to believe that there was a controlled substance, or evidence oftrafficking in a controlled substance, at 167 Fairhaven Drive, Westmount, Nova Scotia. [13] Although based upon the information from a single source, the Crown is of the view that the source information was currentand specific and therefore compelling.

The source was a “known confidential source” - a person with a history of reliability - who hadpersonal knowledge of the information based upon conversations and observations of Mr. Chipman. The address information providedby the source was corroborated by Detective Constable Campbell’s search of various databases which confirmed that Mr. Chipman hadprovided 167 Fairhaven Drive as his address. Analysis The Law [14] The law that applies to these applications is well settled, was canvassed thoroughly in the parties written and oral submissions,and was not contested.

As a result, my review of the law in this oral decision is brief. [15] Search Warrants of the kind in this case are issued under s. 11(1) of the Controlled Drugs and Substances Act. That sectionauthorizes a Justice of the Peace to issue a search warrant on a ex parte basis, where information on oath provides reasonable andprobable grounds to believe that a controlled substance or precursor, anything in which it could be contained, any offence relatedproperty, or anything that will afford evidence of an offence under the Act, is in a place. [16]

Section 8 of the Canadian Charter of Rights and Freedoms ensures “Everyone has the right to be secure against unreasonablesearch and seizure”. [17] When a search warrant is challenged, the starting point is a presumption that the warrant is valid. The onus is on the applicantto rebut the presumption. (Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145 (S.C.C.) at paras 27-29, 43). [18] Recently, Judge Buckle of the NSPC summarized the approach when the issue relates to the sufficiency of the ITO at paras. 221to 227 of her decision in R. v.

Lambert, 2020 NSPC 37: [221] The sufficiency of the Information to Obtain the search warrant (ITO) is to be assessed based upon the revised record – thegrounds set out in the ITO as amplified by evidence heard during the hearing and absent any information that is appropriately excisedfrom it (R. v.Garofoli, supra.). … [222] The test is whether there is a basis upon which an authorizing judge, acting judicially, could have granted the authorization. Aswas stated by Justice Sopinka in Garofoli: 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 review, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere. [223] As is clear from this passage and cases that follow it, my role is not to determine whether I would have granted the authorization. [224] A search warrant is properly issued where there is information under oath that provides “ … sufficient credible and reliableevidence to permit a justice of the peace to find reasonable and probable ground to believe that an offence had been committed and thatevidence of that offence would be found at the specified time and place” (R. v.

Morelli, 2010 SCC 8, at para. 40). [225] Reasonable grounds top believe is not the same as proof beyond a reasonable doubt and less that a balance of probabilities. It hasbeen described as reasonable probability and the point where credible-based probability replaces suspicion. [226] The authorizing judge must consider the evidence explicitly set out in the ITO but may also draw reasonable inferences from thatevidence.

This must also form part of the review process. [227] It is important to assess the ITO as a whole, with each piece of information viewed in the context of the whole and allowing for thepossibility that weaknesses in one area could be compensated by strengths in another.

[19] There are a number of other key authorities that I have considered. They include R. v. James, 2019 SCC 52, R. v. Morelli,2010 SCC 8, R. v. MacDonald, 2014 NSSC 218, R. v. Capson, 2019 NSSC 20, and R. v. Simon, 2019 NSSC 69 as upheld at 2020NSCA 25. Application to the ITO in this Case [20] I now turn to the ITO under review. [21] The informant is Detective Constable John Campbell.

He swore the ITO on May 17, 2018 saying that he had reasonablegrounds to believe that there was evidence of marijuana trafficking in the dwelling house, barn/garage and property of Ryan MatthewChipman at 167 Fairhaven Drive, Westmount, Nova Scotia. The reasonable grounds for his belief are set out in Appendix “A” and areset out in a standardized format which includes a introduction setting out the officer’s relevant training and experience, and noting thatthe ITO contains information from a confidential human source.

The substance of the ITO is found in the sections dealing with thespecifics of investigation and includes a criminal record and information system searches, source qualification information, theinformation obtained from the source and points of corroboration. Detective Constable Campbell concludes by saying that he believesthat the information from his source is reliable and true based upon the totality of the circumstances. [22] The ITO was received by the Justice of the Peace at 7:50 pm on May 17, 2018.

The Warrant was issued at 8:00 pm the sameday and its not contested that the search was conducted shortly thereafter. [23] Having reviewed the evidence on this application, I will focus my analysis on three issues; (

a) the misinterpretation of theNICHE system by Detective Constable Campbell, (

b) the proximity of the source information to the search, and (

c) the assessment of thesingle source information. (

a) The NICHE System [24] I begin with a discussion of the NICHE system. The NICHE system is an information system internal to the Cape BretonRegional Police Service. A brief description is found in the

section of the ITO setting out “Databases Relied Upon”. [25] The ITO references the NICHE information under the heading “Points of Corroboration”. This

section of the ITO purports toprovide information to corroborate the information supplied by a Confidential Informant. In this section, Detective Constable Campbellsays that on May 17, 2018, he searched the system and believed that he found information that Mr. Chipman had been residing at 167Fairhaven Drive, Westmount, Nova Scotia, since 2005. Moreover, on twenty-five occasions since 2005, Mr. Chipman had advised CapeBreton Regional Police that 176 Fairhaven Drive was his home address.

This is the information presented to the Justice of the Peace. [26] Detective Constable Campbell testified that the information in the ITO documenting his search of the NICHE system waswrong. He admitted to misunderstanding the system. He explained that when he conducted his search, the system did show that Mr.Chipman appeared twenty-five times since 2005 and that his address for each entry was 167 Fairhaven Drive. However, it was an errorto say that Mr.

Chipman had reported that address as his home address on each of the twenty-five occasions he had been investigatedsince 2005. [27] Detective Constable Campbell testified that Mr. Chipman’s address in the NICHE system reflected what was recorded as aresult of the last interaction with him on April 26, 2018. On that date, Mr. Chipman was the subject of a traffic stop and Motor VehicleAct investigation. It was correct to say that on that date, Mr. Chipman reported that he lived at 167 Fairhaven Drive.

As the officerexplained, when this information was entered into the NICHE system, the system automatically populated previous entries with thecurrent address. It was an error to take that information as any more than what was reported by Mr. Chipman on April 26, 2018. Oncethe address automatically populated as described, there was no way to determine what Mr.

Chipman had claimed as his residence on theprevious twenty-four occasions that he was subject to investigation. [28] There are a number of observations to be made from the evidence on this point. [29] First, a concern clearly arises that the officer responsible for the ITO had such a fundamental misunderstanding of the NICHEinformation system. Detective Constable Campbell has been a member of the CBRPS integrated drug

section for three and a half yearsand has extensive experience prior to that with another police service. The ITO references the NICHE system, along with otherdatabases relied upon, in a pro forma way, likely due to the frequency with which information from these systems is relied on in ITOs. The officer deposes in his introduction, inter alia, that he has been an affiant in over one hundred judicial authorizations. Reciting hisconsiderable experience is no doubt intended to give the authorizing judge a degree of comfort.

In this context, it is surprising that therecould be a misunderstanding of a basic information system. [30] Second, the error in the information would not be obvious to the Justice of the Peace. Quite to the contrary, it appearedperfectly valid. It would have carried significant weight in the assessment of the grounds for the location of the search. [31] Third, on the evidence I heard, I am satisfied that there was no bad faith or intention to deceive. The law is clear thatintentional non-disclosure or presentation of misleading information are reason to invalidate a warrant (see R. v.

Colbourne, [2001]CanLII 147411 (ONCA) at para. 40). But vitiation is not automatic. Errors in the ITO, whether inadvertent or fraudulent, are factors tobe considered in the overall assessment (see R. v. Morris (1998), 1998 NSCA 229 , 173 N.S.R. (2d) 1, [1998] N.S.J. No 492(CA) at paras 88-91, and R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097 at para. 2)). I do not find the error in this instance astand alone basis to invalidate the warrant. [32] Detective Constable Campbell gave a clear mia culpa in his testimony. He made a mistake.

He did not realize that theinformation system automatically populated with the most recent address of the subject. His explanation made sense. He interpreted theinformation from his search of the system, and his misunderstanding of the system resulted in the wrong

interpretation. The error did not

come to his attention until it was contested by Mr. Chipman. The officer’s evidence on this point was plausible and consistent. [33] What this also means is that when Mr. Chipman had his most recent interaction with police (prior to the search) on April 26,2018, he reported his address as 167 Fairhaven Drive, Westmount, Nova Scotia. [34] I conclude that it is appropriate for me to excise from consideration the portion of the NICHE information that the officeradmits was an interpretive error on his part (R. v. Araujo, 2000 SCC 65 at para. 58). What remains for consideration however, is thatMr.

Chipman reported to police on April 26, 2018 that his residence was 167 Fairhaven Drive, Westmount, Nova Scotia. [35] On this point, the applicant relied upon the decision of our Court of Appeal in R. v. Campbell, 2018 NSCA 42. That case dealtwith the validity of a warrant, not the sufficiency of the ITO and I find it distinguishable from the present case. (b) “Out of Date” Information [36] Next, I turn to the Mr.

Chipman’s complaint that the information in the ITO was not proximate to the search and is thereforeinsufficient. [37] Under the heading, “Information from Confidential Informant”, the ITO contains source information from conversations thattook place on May 4, 7, and 17, 2018. The ITO is dated May 17, 2018. Although not specifically raised by Mr. Chipman, I note that thedates of the conversations between Detective Constable Campbell and the source do not necessarily correspond to the dates that thesource obtained the information provided.

Where some indication is provided, the source says that he has been purchasing marijuanafrom Mr. Chipman “for several years”, that a purchase had happened in May, 2018, within “a week” (of May 7, 2018), and that there wasintent to make future purchases. [38] Mr. Chipman notes that the information provided to the officer during the conversation on May 17, 2018 relates second handinformation from an associate of the source. There is no basis in the ITO to assess the reliability of the information provided by theassociate and it is of very little value.

Assuming that the May 17, 2018 has no value, that leaves the information provided earlier thatsame month. [39] In R. v. James, supra, the Supreme Court of Canada allowed an appeal and ordered a new trial in a case involving an allegationof “stale” information in an ITO. The majority preferred the dissenting opinion of the Ontario Court of Appeal.

In that dissent,Nordheimer, J. held at para. 55 that “there is no rule as to how recent information has to be in order to be relevant” and at para. 64 thatthe assessment “must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account”. Moreover, he emphasized at paras. 64 and 65 the distinction between “dated” information and “stale” information and that “ongoingcriminal enterprises do not come into existence, not do they disappear overnight”. [40] With Justice Nordheimer’s reasons in mind, I disagree with the applicant on this point.

In my view, the source information inthe present case was not out of date or stale. To the contrary, even discounting the information obtained the day of the search, it wasrelatively current and supported an inference that the criminal offence was ongoing. (

c) Assessing the Information of a Confidential Informant [41] The third issue arising from this motion is the assessment of information provided by confidential informants – in this case asingle confidential informant. Our Court of Appeal recently dealt with such an assessment. In R. v. Simon, 2020 NSCA 25, Farrar, J.A.had occasion to review the current law on this point at paras. 14 to 17: [14] Where an officer’s reasonable and probable grounds were based upon confidential information, the leading cases are R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 and R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421.

While Debot andGarofoli did not deal with grounds to arrest, but rather to search, they are consistently applied in the arrest context when tips are involved– especially Debot (see R. v.

LeBlanc, 2009 NSSC 99, para. 57; Dhillon, para. 30). [15] In Debot, Justice Wilson, (concurred with by the majority on this issue) explained whether there were reasonable and probablegrounds must be assessed from the “totality of the circumstances”, having regard to whether the information was compelling, credibleand corroborated: In my view, there are at least three concerns to be addressed in weighing evidence relied on by 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 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. (Pg. 1168) [16] Justice Wilson found each detail provided by the confidential informant need not be confirmed “so ling as the sequence of eventsactually conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence”.

Further, that “the level ofverification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer detailsare provided and the risk of innocent coincidence is greater”. (Debot, p. 1172) [17] In Garofoli, Sopinka, J. identified the following principles from Debot and R. v. Greffe, (SCC), [1990] 1 S.C.R.755: (

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 this

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; and (

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 the reliability of the information. (pp. 1456-1457). (Emphasis added in Simon ) [42] In R. v. Simon , Justice Farrar went on to assess the information provided by two confidential sources. He concluded that the information presented was, at most, a suspicion of trafficking, and the totality of the circumstances fell short of sufficiency. The decision of the trial judge was upheld. [43] Likewise, in R. v.

Capson , supra , Edwards, J. found the ITO presented suspicion and not credibility based probability. The issue in that case was the receipt of bald and conclusory statements, and inability to assess associate reliability, and the failure of the police to seek substantial corroboration. [44] Finally, Arnold, J. in R. v. MacDonald , supra , dealt with an ITO that was reduced to a single source after excision. He reviewed the authorities dealing with the sufficiency of single source ITOs and adopted the reasons in R. v.

Philpott , [2002] O.T.C. 990 (OSCJ) at para. 161 that “the law must vigorously maintain the distinction between acting on a tip from a reliable source and acting on a tip from an unproven source”. He and concluded at para. 59: Therefore, an ITO that relies on a single source may or may not meet the standard of sufficiency depending on the past-proven reliability of the source, the degree of detail in the tip and the corroborating information provided by police. [45] Justice Arnold ultimately found the ITO in that case did not rise to credibility-based probability.

The single source was unproven, reliability was unknown and there was no compensating credible and reliable evidence provided. [46] In the present case, we are dealing with a single source. The source is described as a “confidential human source” who has advised police that Mr. Chipman is in possession of cannabis marijuana for the purpose of trafficking. [47] Under the heading “Source Qualification”, the source is described as “coded” and a person the officer had known for approximately seventeen months.

Significantly, Detective Constable Campbell says that this source has provided information to police that resulted in twenty-two previous CDSA search warrants where illegal drugs were seized and people were charged with CDSA offences. The source was paid for the information given to police previously and did not have a criminal record. [48] The foregoing information indicates that the source has a proven track record of providing reliable information, unlike the source in R. v. Simon (as described at para. 15 of the trial decision). It is similar to the description of the source in R. v.

Capson ( at para. 23 ). [49] I am satisfied that the source in the present ITO is reliable based upon his past record with police. I note that the ITO contains “Points of Corroboration” including the fact that Mr. Chipman reported to police during a traffic stop on April 26, 2018 that he lived at 167 Fairhaven Drive, Westmont, Nova Scotia. On that date he was driving a four door grey 2007 Acura. A JEIN records search on May 17, 2018 further confirmed that Mr. Chipman was the registered owner of a grey 2007 Acura and that the owner address was 167 Fairhaven Drive, Westmount, Nova Scotia.

This point of corroboration has some significance given that the Nova Scotia Property Online database and the 911 Dispatch System indicate that 167 Fairhaven is owned by someone other that Ryan Matthew Chipman. [50] The next piece of the assessment requires an examination of the degree of detail of the information and the knowledge base of the source. The ITO contains the summarized content of three conversations between the officer and the source. The first two conversations convey information that is based on personal knowledge of the source.

The information was obtained as a result of the source’s experience buying marijuana from Mr. Chipman at his house over the course of several years up to an including May of 2018. The third conversation does not convey the source’s personal information. It is information that the source obtained from an associate. It is not clear to me that the associate providing the information in the May 17, 2018 conversation is the same associate mentioned by the source in the earlier conversations.

Nor is it stated that the source obtained the information directly from the associate. [51] The first conversation is on May 4, 2018 and contains what I consider to be detailed information reproduced as follows: - Ryan Chipman is a “pound” dealer of marijuana - Ryan Chipman lives at #167 Fairhaven Drive in Westmount, Nova Scotia - Ryan Chipman lives alone - Ryan Chipman drives a silver Acura and a truck - (Vetted) - (Vetted)

- (Vetted) Source “A” and an associate having (sic) been purchasing marijuana from Ryan Chipman … for several years - (Vetted) Source “A” … typically purchase … marijuana (4 ounces) from Ryan Chipman - (Vetted) Ryan Chipman will keep the four (4) ounces of marijuana for sale … in the kitchen of his home - The marijuana is always in clear zip-lock baggies - Ryan Chipman has a barn/garage on his property where he stores marijuana - Ryan Chipman may store marijuana elsewhere on his property in the woods at the rear of his property. [52] In my view, the information provided by the source on May 4 is compelling.

It names the drug, the locations of storage, the method of storage, the location of transactions, the magnitude of transactions, some of Mr. Chipman’s personal details, and indicates a pattern of conduct over several years.

When one considers the proven reliability of the source, and considers the information about the pattern of conduct, I see a basis for the Justice of the Peace to conclude that reasonable grounds exist. [53] The information provided by the source on May 7, 2018 is again based upon personal information and, although containing less detail than the earlier information, is more proximate to the search, and confirms ongoing weekly purchases of marijuana from Mr.

Chipman at his home in May of 2018. [54] In my view, the detailed information conveyed by a proven source indicating a pattern of conduct exists that Ryan Chipman stores and regularly sells specific quantities of marijuana from his home at 167 Fairhaven Drive is sufficient basis for the warrant as it moves beyond suspicion and rumour to credibly based probability. Conclusion [55] In my view, the ITO in this case established reasonable and probable grounds to believe that the search would reveal evidence of drug offences as set out in the Search Warrant.

There was a sufficient basis for the Justice of the Peace to conclude that the search warrant could issue. [56] Accordingly, I find no breach of Mr. Chipman’s s. 8 Charter rights arising from the issuance and execution of the search warrant and no need to conduct a s. 24(2) analysis. [57] Mr. Chipman’s application is dismissed. Gogan, J.