) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 6397

CITATION : R. v. Drinkwater, 2010 ONSC 6397 COURT FILE NO.: 09-40000707-0000 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – SHABAZZ DRINKWATER ) ) ) ) ) ) ) ) Kene Canton, Assistant Crown Attorney Morrie Luft, counsel for the Defendant ) ) HEARD: November 15 and 16, 2010 Kiteley J. [ 1 ] Mr. Drinkwater is charged with possession of a loaded restricted firearm and related offences.

Counsel has brought an application pursuant to s. 8 of the Charter of Rights and Freedoms in which he alleges that the search warrant failed to contain reasonable grounds to justify its issuance. On behalf of Mr. Drinkwater, counsel seeks to exclude the evidence seized as a result of the execution of a search warrant on December 12, 2008, namely the firearm and certain identification relating to Mr. Drinkwater. Information to Obtain [ 2 ] The ITO was in relation to Mr. Drinkwater and Jermaine Kennedy. It was provoked by information from a confidential informant.

Parts of the ITO have been redacted and will be indicated as XXXXX. In Appendix A, under the heading “things to be searched for”, the word “firearm” appears twice and the word “firearms” appears once. In Appendix B it is asserted that the search will afford evidence with respect to the offence by Mr. Drinkwater and Mr. Kennedy of possession of a firearm. [ 3 ] In Appendix C, the affiant lists and describes the various “investigative sources” including CPIC, COPS, MANIX, RICI, TPS208 Field Contact Cards, CIPS, CFRO, eCops Unified Search and FAC.

In the “overview section”, the affiant indicated he had received information that Mr. Drinkwater and Mr. Kennedy were “currently” in possession of XXXXX handguns that were being stored at 25 Stong Court Apartment 1211. [ 4 ] The affiant indicated that Detective Constable Mike Hayles had received information as follows: (

a) Shabazz Drinkwater goes by the street name NASTY (

b) Jermaine Kennedy goes by the name of JERSEY (

c) Both are Driftwood Crip members in the Jane and Finch Area (

d) Shabazz Drinkwater is a victim of a recent shooting (

e) Both currently live at 25 Stong Court unit 1211, Jane and Finch area (

f) On XXXXX 2008, Shabazz Drinkwater and Jermaine Kennedy were in possession of XXXXX Handguns inside their apartment (

i) XXXXX (ii) XXXXX (

g) Shabazz Drinkwater and Jermaine Kennedy are known drug dealers in the Jane and Finch Community (

h) Shabazz Drinkwater and Jermaine Kennedy do not walk around with their guns but have it (sic) stashed at their apartment (

i) Shabazz Drinkwater has no vehicle and walks to all his destination (sic) (

j) XXXXX (

k) Shabazz Drinkwater and Jermaine Kennedy have the guns solely to protect themselves from local competition and enemies.

[ 5 ] Under the heading “Police Background”, the affiant reported on the checks of both names. Mr. Drinkwater was born in 1981. According to the CPIC search, he was subject to a firearms prohibition for life. He had received a suspended sentence of possession of cocaine in March 2008. Mr. Drinkwater had six convictions dating back to 2002 including possession of a prohibited or restricted firearm with ammunition and three drug convictions.

The UNIFIED SEARCH indicated he was the subject of 66 police contacts including as a victim of a shooting in September 2008 as a result of which he attended Humber River Regional Hospital with a gunshot wound to his right shoulder. On September 25, 2008, Mr. Drinkwater and Mr. Kennedy were investigated together at 205 Driftwood Avenue at which time Mr. Drinkwater gave his home address on Callowhill Drive while Mr.

Kennedy gave his home address of 25 Stong Court Apartment 1211. [ 6 ] Two officers attended 25 Stong Court and confirmed that unit 1211 was being rented out to Jermaine Kennedy and “another unknown male” also resided in the unit. Mr. Kennedy paid the rent by cash monthly and had never missed a payment. The unit had two locks on it. Observations from the ground level revealed that there were no lights on in the apartment. [ 7 ] Under the heading “grounds to believe an offence has been committed” the affiant deposed as follows: (

a) XXXXX details on both Shabazz Drinkwater and Jermaine Kennedy. There address, hangouts and associates are all known XXXXX (

b) XXXXX (

c) It was confirmed that Jermaine Kennedy rents out the unit at 1211 at 25 Stong Court, in the City of Toronto. (

d) Shabazz Drinkwater has a lengthy criminal record which includes three drug convictions and a firearm conviction within the last 7 years. (

e) Toronto Police Service has investigated both Jermaine Kennedy and Shabazz Drinkwater together as recently as 2008-09-25 and at this time Jermaine Kennedy gave his home address of 25 Stong Court Unit 1211. [ 8 ] Under the heading “grounds to believe things to be seized will afford evidence of the offence” the affiant stated that: Shabazz Drinkwater and Jermaine Kennedy are known drug dealers and information XXXXX that they have guns to protect themselves.

There is no reason to believe that they would get rid of their handguns, therefore giving the affiant reason to believe that the handguns are still in its (sic) place. [ 9 ] Under the heading “grounds to believe that things are at the place to be searched” the affiant stated: Jermaine Kennedy and Shabazz Drinkwater are known drug dealers.

XXXXX which was XXXXX reveals that neither Jermaine Kennedy nor Shabazz Drinkwater walk around with their handguns and they do not have vehicles of their own. . . . [ 10 ] Under “conclusion” appeared the following: I verily believe that the above information true (sic), credible and reliable. The information received [confidential information] is compelling and accurate. XXXXX, the affiant is confident that the information is reliable.

The information provided to Police has been corroborated making the information that much more valuable. [ 11 ] There is an Appendix D that is not referenced in the ITO but the reference may have been redacted. After eleven lines of redacted text, in handwriting, appear the words: “Above are reasons why C.I. is reliable and CI received consideration.” Agreed Facts [ 12 ] For purposes of the s. 8 application, counsel agreed no evidence needed to be called.

The defendant conceded that there was a judicially authorized search warrant, and that a search of 25 Stong Court unit 1211 was conducted on December 12, 2008, during which various documents, firearm and ammunition were located and seized from bedroom #1 that the Crown contends is associated to the accused. [ 13 ] Based on the notes of Officer Peacock [1] , it was agreed that the following had been located in what was referred to as bedroom #1: large blue air mattress on left side of room leaning up on wall; there are several shoe boxes in far right corner under window.

There is also clothing all on floor in front of closet. In closets, note all clothing is men’s clothing and is very large either 2XL or 3XL. . . . continued to search room – on window sill I locate black wallet. Open black wallet and locate the following in name of Shabazz Drinkwater: health card, good life fitness card, pay stubs, community services records, prescription, probation documents, bank card signed by Drinkwater.

Also on window sill, locate a photo of a male believed to be Drinkwater, a Humber Hospital appointment sheet for Drinkwater regarding a visit for a gunshot wound to right shoulder, 2 prescription receipts, a TD access card, school photo ID, Armour employee cards, cards all in the name of Drinkwater. In the shoe boxes there are numerous documents and keepsakes. . . . A prescription form dated 08 09 20. Note there were 2 pill bottles with Drinkwater’s name on it. On floor near centre of room I locate an unopened letter from St. Mike’s hospital addressed to Drinkwater.

Locate a second letter from Sears in the name of Ethlyn Drinkwater. Both letters were addressed to Unit 1822 500 Murray Ross Parkway. On back of bedroom #1 door, I removed a photo of Drinkwater holding a female. Legal Principles [ 14 ] The reasons for decision in R. v. Debot [2] provide the framework of analysis for the assessment of reliability of information

received from a confidential source. W.B. Horkins J. [3] described that framework as the three “Cs”: Is the information compelling? Is the source credible? Has the information been independently confirmed in some material aspect? The ITO may be found to be sufficient without satisfying all three aspects so long as, in total, there is a proper basis for a judicial conclusion that the information from the confidential source is reliable. [ 15 ] As the reviewing court, I must not substitute my view as to whether the warrant should have been issued.

I must only consider whether the Justice of the Peace, acting reasonably and judicially could have issued the warrant. The factors to be considered include the following: the degree of detail of the tip; the informer’s source of knowledge; indicia of the informer’s reliability such as past performance or confirmation from other investigative sources [4] . [ 16 ] I dismissed an application for leave to cross-examine the affiant and sub-affiants. The Crown relied on the redacted version of the ITO. There was no evidence of amplification.

I must assess the constitutionality of the search by reference only to the content of the ITO filed. [5] Analysis [ 17 ] I turn now to applying those principles to determine whether the ITO as redacted supports the issuance of the search warrant. A. Degree of detail of the tip [ 18 ] The general information was the real names and street names of Mr. Drinkwater and Mr. Kennedy; that Mr. Drinkwater had been the victim of a recent shooting; and that Mr. Drinkwater had no vehicle and walked to all his destinations. That information was readily ascertainable from anyone who knew Mr. Drinkwater or Mr.

Kennedy. [ 19 ] The information related to firearms or drugs was that Mr. Drinkwater and Mr. Kennedy were Driftwood Crip members; were known drug dealers who lived at 25 Stong Court unit 1211; and they had guns stored in unit 1211 that were solely to protect themselves. [ 20 ] The details that are missing include the following: (

a) When the information had been obtained by the confidential informant: the ITO indicates that Mr. Drinkwater and Mr. Kennedy were “currently in possession of XXXXX handguns” but there is no indication as to what was meant by “currently”. In paragraph (f), the year 2008 is referred to but that could have been anytime in the preceding 11 months; (

b) When the confidential informant had provided the information to the police: the ITO is silent as to how recently the information had been provided; (

c) Based on the placement of redactions on the page, there may have been descriptive information about the firearm(s). However, the redacted ITO is silent; (

d) It is possible that the redactions contained physical descriptions of the targets but the ITO relied on by the Crown has no details; (

e) Details about the apartment and it’s layout and how many bedrooms and how the police would ascertain which bedroom belonged to either of the targets; (

f) Information about the drugs that these “known drug dealers” trafficked in. [ 21 ] I agree with counsel for the applicant that the information provided by the informant is lacking in detail and is not compelling. B. The informer’s source of knowledge [ 22 ] The ITO is silent as to the source of the informant’s knowledge. There is no indication whether it was the result of personal observations or whether the informant had a source. If it was the result of personal observations, greater detail would have been expected. C.

Indicia of informer’s reliability [ 23 ] Just as was the case before McMahon J. [6] in dealing with an anonymous tipster, there is nothing in the redacted ITO about the identity of the source, his or her circumstances, and whether the source has a history as a proven informant. All that is known is that the source received consideration for the information. D. Corroboration [ 24 ] As for confirmation and corroboration: (

a) Of the eleven items of information, the police confirmed (d), namely that Mr. Drinkwater was a victim of a recent shooting; (

b) As for (e), the police corroborated that Mr. Kennedy lived at 25 Strong Court unit 1211. They did not confirm that Mr. Drinkwater lived there as well. Their information was that Mr. Kennedy and “another unknown male” resided in unit 1211; (

c) Subparagraphs (f), (g), (

h) and (

k) associate Mr. Drinkwater and Mr. Kennedy in illegal activities. The investigative searches indicated that Mr. Drinkwater and Mr. Kennedy had both been investigated on September 25, 2008 at an address on Driftwood Avenue. However, they each gave different addresses. The searches also indicated that Mr. Drinkwater had a record that included drugs but there was no indication of what kind of drugs and what role he played in the drug hierarchy;

(

d) As for (a), (

b) and (

c) and (i), there is no indication that the police corroborated their street names, that they were Driftwood Crip members, or that Mr. Drinkwater had no vehicle and walked to all his destinations. [ 25 ] The search of the police databank only corroborated basic, general information. [7] The search disclosed that Mr. Drinkwater had been associated with drugs and firearms in the past. It might have been difficult to confirm or corroborate that Mr. Drinkwater and Mr.

Kennedy were in possession of handguns, stashed their guns in the apartment, or had the guns solely to protect themselves from local competition and enemies. However, just as in R. v. Wali [8] there is no corroboration as to the alleged criminal conduct of firearm possession or drug trafficking. E. The totality of the circumstances [ 26 ] Just as in Wali [9] , there was no urgency reflected in the ITO. To the contrary, it was indicated that the guns were stashed in the apartment. There was no suggestion that Mr. Drinkwater or Mr. Kennedy intended to move them or use them.

In the absence of urgency, the police could have conducted surveillance on the apartment or on Mr. Drinkwater (who was well known to them) or Mr. Kennedy (who had been investigated on September 25, 2008). They chose not to do so. [ 27 ] There was no independent confirmation of the material facts provided by the confidential source. [ 28 ] Based on the ITO as redacted, I cannot conclude that the Justice of the Peace acted reasonably and judicially in issuing the search warrant. I am satisfied on the balance of probability that Mr.

Drinkwater’s s. 8 right to be secure against unreasonable search and seizure was violated. Exclusion of evidence pursuant to s.24(2) [ 29 ] I turn to whether the products of the unreasonable search ought to be admitted as evidence on the basis of the three criteria enumerated in R. v. Grant [10] . [ 30 ] The first factor is the seriousness of the state conduct. As the Supreme Court held in Grant , admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

However, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute. [11] [ 31 ] On the one hand, the police did seek and obtain a prior judicial authorization for the search. They had a duty to protect the confidential informant and they did so. On the other hand, the police conducted a superficial investigation of the allegations of a confidential informant.

Furthermore, as indicated above, in the “conclusion” of the ITO, the affiant stated that “the information provided to police had been corroborated making the information that much more valuable”. The text of the ITO created the impression that all of the information in subparagraphs (

a) to (

k) had been corroborated when that was not the case. While that assertion in the “conclusion” was in error and may have misled the issuing justice and while the attempts to corroborate the information were superficial, I am not prepared to find that the police wilfully or recklessly disregarded Mr. Drinkwater’s Charter rights or otherwise acted in bad faith. I am not persuaded that the state conduct was serious.

That conclusion weighs in favour of admission. [ 32 ] The second factor, the impact of the breach, calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on Mr. Drinkwater’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail, breeding public cynicism and bringing the administration of justice into disrepute [12] . [ 33 ] I have no evidence from Mr. Drinkwater.

For purposes of bringing the application, I found that he had a reasonable expectation of privacy but that decision was influenced by the fact that the Crown relied on the assertions by the affiant in the ITO that it was his residence and it was inconsistent with that assertion to permit the Crown to take the position that Mr. Drinkwater did not have sufficient reasonable expectation of privacy to satisfy the threshold requirement to bring this application. However, the ITO contains information that Mr. Kennedy was the tenant. For purposes of this application, Mr.

Drinkwater has not conceded that it was his residence. The ITO indicated a residence address of Callowhill. Although it was a residence which attracts a high expectation of privacy, and indeed was a bedroom, which is even more significant, the tenant was Mr. Kennedy. On this record, I cannot find that it was Mr. Drinkwater’s residence. Under these circumstances the breach did not undermine the interests protected by the right to be free from unreasonable search and seizure. I am not persuaded that the infringement was serious.

That also weighs in favour of admission. [ 34 ] The third factor, society’s interest in adjudication on the merits, requires a balancing of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion [13] . [ 35 ] On the one hand, I have concerns similar to those expressed by McMahon J. in Wali [14] that the information is vague and uncorroborated, yet it was relied on as the basis for a search warrant of a residence.

There is the prospect that the informed member of the public, weighing the prospect of the issuance of a search warrant under such circumstances would conclude that the admissibility of the evidence would bring the administration of justice into disrepute. [ 36 ] On the other hand, the evidence of the firearm and ammunition in association with the evidence of identification is highly reliable evidence that is crucial to the prosecution where the offence alleged deals with a serious societal problem that raises major public safety concerns. [ 37 ] As part of the balancing required by the Supreme Court, where the first two criteria (seriousness of state conduct and impact of the breach) suggest admissibility while the third criteria suggests both exclusion and admissibility, I am satisfied that admitting the firearm and the ammunition and the identification would not bring the administration of justice into disrepute. [ 38 ] As an alternative, counsel for Mr.

Drinkwater argued that if the firearm and ammunition were not excluded, the evidence of identification should be excluded. If I took that step, the important evidence of an association between Mr. Drinkwater and bedroom #1

would be lost. He relied on the reasons for decision in R. v. Campbell [15] in which Marrocco J. dealt with an application to exclude evidence seized pursuant to a search warrant. He excluded a knife, substantial funds, and significant quantities of drugs but admitted two loaded firearms and a substantial quantity of ammunition on the basis that the public is sufficiently concerned with gun related offences to permit the conclusion that admitting the evidence of those offences will not in the long term bring the administration of justice into disrepute.

Given the view I take of the s. 24(2) analysis, I do not need consider this alternative. I leave for another day whether, unlike the drugs in Campbell , documentary evidence that is, on its own, innocent and devoid of probative value but becomes essential to the prosecution, ought to be considered for exclusion. Garofoli ruling [ 39 ] In an oral ruling I dismissed the application to cross-examine the affiant and sub-affiants. I do not have a transcript of that ruling.

Based on my notes, I may have indicated that the detail about the results of the investigatory searches corroborated the information of the confidential informant. I did not intend to say that. If I did say that, it was unnecessary to the reasons for that ruling and ought to be disregarded. Conclusion [ 40 ] Mr. Drinkwater’s s. 8 right to be secure from unreasonable search and seizure was violated. However, I am not persuaded that the evidence should be excluded. Kiteley J. Released: November 22, 2010 CITATION : R. v. Drinkwater, 2010 ONSC 6397 COURT FILE NO.: 09-40000707-0000 DATE: 20101122

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHABAZZ DRINKWATER REASONS FOR JUDGMENT Kiteley J. Released: November 22, 2010