) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2082

CITATION : R. v. RIETDYK, 2013 ONSC 2082 COURT FILE NO.: 1618/12 DATE: 20130409 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – KYLE RIETDYK Applicant ) ) ) ) ) ) ) ) MICHAEL ROBB, for the Crown KENNETH MARLEY, for the Applicant ) ) HEARD: April 5, 2013 DESOTTI, J. A.

The Application [ 1 ] The accused, Kyle Rietdyk, brings an application pursuant to section 24 (2) of the Charter of Rights and Freedom, (hereinafter “the Charter”) to exclude from evidence at the applicant’s trial on three charges of possession of controlled substances for the purpose of trafficking all observations made and all items seized from the applicant’s residence by officers of the Sarnia Police Services and the Ontario Provincial Police during their search of the residence. [ 2 ] Pursuant to

section 8 of the Charter , which guarantees an individual’s right from unreasonable search or seizure, counsel for the accused asserts that the telewarrant obtained to effect the search of the accused’s residence at apartment 1003, 56 Finch Dr. in the City of Sarnia, contained insufficient grounds to justify the issuance of the warrant and as such the search of the premises was a warrantless search thus triggering the provisions of section 24 (2) of the Charter and the sought exclusion of the evidence so found within. B.

The Information Contained within the Application for the Telewarrant [ 3 ] The first eleven paragraphs in “Appendix A” of the application are fairly standard and set forth the various tools utilized by the officer to obtain the information in support of the telewarrant. At paragraph 15 of Exhibit 1 filed with this application by the Crown, the confidential source is vetted and indicated what he knew about the accused, Kyle Rietdyk, and what could be found at the residence of the accused and other particulars as follows:

a) The confidential source was a 1 time proven source that provided Kevin Brown, a constable involved with this investigation with information that led to an arrest of an accused for a breach of a recognizance. This was Kevin Brown’s confidential source and not that of Richard Scott, the affiant.

b) The confidential source is involved in the drug subculture and as such is able to identify illegal drugs.

c) The confidential source provided information about the address of the accused and has never been convicted of any crimes of deceit, public mischief or perjury and has provided this information for consideration on pending charges, which have been since dismissed.

d) The confidential source indicated that the accused was selling marijuana from his residence at 56 Finch Dr., apt., 1003 in Sarnia and that the building number ‘56’ was missing a ‘5’ from the number. The building was said to be the building to the north close to Wellington St.

e) The confidential source indicated that he had been personally present in the apartment in February of 2011 and observed marijuana on the coffee table and that he observed the accused sell marijuana to people.

f) He indicated that the accused lived alone was in his early 20’s and that his phone number was 519-466-5976.

g) The confidential source indicated that the accused was a white male, medium build, approximately 5’11’’-6’ in height with blondish brown hair.

h) The source indicated that the accused drove a Chrysler Neon and that he had purchased marijuana from the accused on a number of occasions.

i) The source further indicated that he had observed the accused, in February of 2011, hide the marijuana. [ 4 ] The Police Automated Registration Information System confirmed the residential address of the accused; that he owned a blue 2000 Chrysler Neon licenced #BCRZ851 and that the accused was a suspended driver.

The Record Management System or NICHE, confirmed that the accused attended Lambton College; that he had been involved in a motor vehicle collision in 2010 with the same Neon; that his telephone number was as stated by the confidential source; and that he was a white male medium build 5’ 9’’, with blondish brown hair. C.

Analysis [ 5 ] A number of cases have been relied upon by counsel for the accused to indicate that the information in support of the telewarrant was insufficient to satisfy a judicial officer that a search warrant should issue or that a better effort could have been made to satisfy or corroborate the information that was provided by the confidential source. [ 6 ] For example, the decision of R. v. Garofoli is relied upon to indicate that the information of a confidential source or ‘tipster’ is normally never sufficient to justify the issuance of a warrant.

The rationale for this principle is that anyone with ‘an axe to grind’ could subject someone to an intrusive search of his/her residence. I do not disagree with this statement of the law, but I would point out that the facts of Garofoli have nothing to do with the facts as found in the application before me. [ 7 ] Garofoli was about information obtained from wire-taps and whether the information could be assessed or opened by counsel for the defence and also whether cross-examination could take place thereupon with the protection of the identity of the confidant as a paramount concern.

We have here redacted information that has been independently confirmed by the investigating officers. The issue here is the sufficiency of the information and whether better confirmation could have been obtained. [ 8 ] In this regard, counsel relies on the decision of R. v. Zammit, which he submits is a factually similar situation to the circumstances and information before the justice of the peace who issued the telewarrant in this application. I disagree! [ 9 ] The facts in Zammit related to the reliance of the provisions of

section 10 of the Narcotic Control Act that allowed a warrantless search of a place other than dwelling-house where the officer had reasonable grounds to believe that the place contained narcotics. In Zammit , the place was a motor vehicle. [ 10 ] The informer, confidential source, indicated by way of a phone call to the officer in mid-April of 1991 that:

a) the accused was selling drugs;

b) the name of the accused;

c) the description of the accused’s motor vehicle as a 1987 Jimmy. [ 11 ] The officer did confirm through his computer that the name of the accused was accurate. Subsequently, at another meeting, the confidant gave the officer the following information:

a) a brief description of the accused;

b) the name and address of his workplace;

c) the officer believed that since the informer had provided him with accurate information about the accused’s name and address and phone number that the informer was thus reliable. [ 12 ] The officer did confirm that the 1987 Jimmy was at that address and was in the name of the accused. On May 6 th , 1991, the same informer indicated to the officer that the accused would come into possession of cocaine and this officer then sought assistance of other officers.

The other officers may or may not have had been shown a picture of the accused although their evidence was that they had only a description of the accused and his motor vehicle. [ 13 ] The officers agreed that they would stop the vehicle under the pretence of a traffic violation but that they intended to search the motor vehicle and the accused. The Court of Appeal relied upon a passage of Martin J.A. of the Ontario Court of Appeal in R. v.

Debot at page 218-19, as follows: Consequently a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that the drugs would be found in a certain place would be an insufficient basis for granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged.

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant.

Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip , whether the informer discloses his or her source or means of knowledge and whether there are indicia of his or her reliability , such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief. [ 14 ] The court went on to conclude that there was no basis for the informer’s “tip”; there was no evidence of the informer’s reliability; and surveillance by the police yielded nothing out of the ordinary and in the result the conviction was set aside. [ 15 ] The most recent decision of the British Columbia Court of Appeal in R. v.

Dhillon that refused to admit a firearm as evidence as a result of an unreasonable search of a motor vehicle, affirm the same proposition that absent objective reasonable suspicion and a valid investigative detention, a warrantless search is not justified. [ 16 ] The circumstances in Debot v. Regina delineate the factors that form the basis of the argument presently before the court. In that case, Justice Wilson of the Supreme Court of Canada at page 215 came to the same conclusion as Justice Martin that there are three concerns to be relied on by a court in justifying a warrantless search:

a) Was the information predicting the commission of the offence compelling?

b) Was the “tip” source credible?

c) Was the information corroborated by police investigation prior to making the search? [ 17 ] In considering these three factors the ‘totality of the circumstances’ must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated in strengths in the other two.

[ 18 ] I would also indicate that there is no decision that I am aware that mandates that an investigative police team need exhaust all possible avenues of corroboration of the information of a confidant. In this case, the authorities did not try to access the phone records of the accused and did not try any hallway surveillance of the accused’s apartment. [ 19 ] On this latter point, and based on the solid doors at the end of each hallway, I queried counsel if this made any sense, given that we were in an apartment complex.

Frankly, as a matter of law, I do not see this failure to corroborate every possible aspect of the information as fatal to the telewarrant if there is sufficient information to provide a basis for the issuance of same. [ 20 ] Although we have a telewarrant and not a warrantless search on the facts in this case, the factors or concerns are still most relevant.

In considering the first aspect of these concerns, there is certainly a significant compulsion to the information from the informer that indicated that not only was the informer present in the apartment of the accused during the month of February 2011, but he observed the accused selling marijuana to individuals in this apartment and the informer also purchased marijuana from the accused, Kyle Rietdyk. [ 21 ] The “tip” source was credible as his previous information led to the arrest of an accused party for a ’breach of a recognizance’.

While this previous information was not significant in terms of criminal activity or the ‘drug trade’, nevertheless it proved to be reliable and thus credible. [ 22 ] This third prong concern had elements of information that were verified by the police authorities through various means including direct surveillance and elements that were less than significant.

The police could confirm that the apartment building had a number missing; the name, age, address, school, and description of the accused were also consistent with the information of the informant. [ 23 ] The car that was said to be driven by the accused by the informant namely a blue 2000 Neon was wrong as the accused, Kyle Rietdyk had totalled this motor vehicle in July and had purchased a Chevrolet Cavalier.

The police also presented this erroneous information in their application to obtain a telewarrant and indicated that this information provided by the confidant was corroborative of the reliability of this informant. [ 24 ] As stated, this was in error but on balance, I am not satisfied that this is reflective of some bad faith conduct on the part of the affiant, Constable Richard Scott, who indicated under oath that he was clearly in error and he indicates that he should have looked harder or with more diligence before assuming that the P.A.R.I.S. query was accurate. [ 25 ] As by both Justices Wilson and Martin indicated, one must approach this task by considering the ‘totality of the circumstances’.

On the facts of this case and given that we are dealing with at least a 10 floor apartment building and not a single family dwelling, I would conclude that the information provided meets all of the aforementioned concerns. [ 26 ] There was a mistake that was made in the information that was before the justice of the peace, but the rest of the information was certainly sufficient to satisfy the issuance of a telewarrant and even the error that was presented was still reflected in the P.A.R.I.S. data information. [ 27 ] The application is thus dismissed. “Justice J.A. Desotti” The Honourable Mr. Justice J.A.

Desotti Released: April 9, 2013

CASES CONSIDERED R. v. Mann, 2004 SCC 52 , 185 C.C.C. (3d) 308; R. v. Dhillon, 2012 BCCA 254 , 291 C.C.C. (3d) 93; R. v. Araujo(2000) 2000 SCC 65 , 149 C.C.C. (3d) 449; R. v. Pires & Lising, 2005 SCC 66; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539; R. v. Sanchez & Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357; R. v. Garofoli (SCC), 1990 CarswellOnt 119, 80 C.R. (3d) 317, 116 N.R. 241, 60 C.C.C. (3d) 161, 43 O.A.C. 1, [1990] 2 S.C.R. 1421, 50C.R.R. 206, 36 Q.A.C. 161, J.E. 90-1684; R. v. Zammit (ON CA), [1993] O.J. No. 881; Debot v. The Queen, (SCC), 52 C.C.C. (3d) 193; R. v.

Morris, 2008 ONCJ 276 , [2008] O.J. No. 2281; R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32; R. v. Stevens, 2011 ONCA 504 , [2011] O.J. No. 3164; R. v. Bajich, 2012 ONCJ 696, [2012] O.J. No. 5325 CITATION: R. v. RIETDYK, 2013 ONSC 2082 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KYLE RIETDYK REASONS FOR JUDGMENT DESOTTI, J. Released: April 9, 2013