R. v. James, 2019 ONCA 288
[55] There is no rule as to how recent information has to be in order to be relevant: R. v. Dionisi, [2012] A.J. No. 65, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view, the trial judge fundamentally misunderstood the nature of the offences being investigated and the respondent's possible involvement in them. The information from the investigation showed that Primo was not some low level drug dealer operating in small quantities that might be sold on a street corner or in a back alley. Rather, the information showed that Primo was dealing in much larger quantities of cocaine, up to the kilogram level. The activities of large-scale drug dealers are not transitory.
[57] Not only do these events support this conclusion, so too does the criminal record of the respondent. Prior criminal activity -- including prior involvement in the drug trade -- is a relevant factor in determining whether there are reasonable and probable grounds for a search: R. v. Pasian, [2017] O.J. No. 2858, 2017 ONCA 451, 349 C.C.C. (3d) 144, at para. 6.
[60] Against that background, and the contemporaneous evidence regarding the drug activity involving the respondent and MD, the affiant's failure to mention that the April 2012 charges were stayed is an entirely minor error that does not, in any way, detract from the overall picture presented to the authorizing justice. It certainly would not have unduly influenced the justice of the peace in terms of whether or not to issue the search warrant. And, on review, whether you excise the April 2012 charges, or amplify the record by including the stay of those charges, neither would result in a conclusion that the justice of the peace could not have issued the search warrant.
[61] Returning to the issue of the currency of the information, the only authority to which the trial judge made reference on the issue of stale-dated information was R. v. Silveira (1995), 1995 CanLII 89 (SCC), 23 O.R. (3d) 256, [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38. It is not clear how that authority would assist on the issue here since that case [page338] dealt with a search in exigent circumstances. I do note, however, that Cory J., speaking for the majority, discussed the problem that the police had in terms of whether they could obtain a search warrant in the exigent circumstances that they were confronted with. He suggested that one solution to the problem would have been for the police to have obtained the search warrant based on information that they had from a week or so earlier. In making that suggestion, Cory J. made the following observation, at para. 154, which is particularly apt to the situation here:
In this case, evidence existed upon which a search warrant might have been obtained before the arrests were made. It may be that it would have been preferable for the police to have obtained a search warrant based on the earlier transactions prior to that made on the day of the arrests . . . At the time of trial, if the search warrant was attacked on the grounds that it was outdated, evidence could be adduced of the difficulty of providing up-to-date material in circumstances like these and that, in light of the necessity of protecting the evidence, the police found it necessary to obtain a warrant based on the earlier transactions and observations. In the absence of an unreasonable delay between the observations and the application, it would be difficult to imagine that the warrant could be successfully attacked on the grounds that it was stale-dated. That is the way the police should have proceeded.
[62] A more pertinent authority on this subject is this court's decision in R. v. Breton, 1994 CanLII 939 (ON CA), [1994] O.J. No. 2097, 74 O.A.C. 99, 93 C.C.C. (3d) 171 (C.A.). In that case, there had been drug transactions in an apartment on September 16 and October 8. A search warrant was executed on October 15. One of the challenges to the warrant was that there was no information to believe that drugs would be found in the apartment on October 15. While that argument found favour with the trial judge, it did not find favour with this court. This court concluded that it was open to the issuing justice to infer from the earlier transactions that there was a probability that drugs would be found in the apartment on the later date. In so concluding, this court made reference to an earlier decision where a search warrant was issued on July 12 based on a drug transaction from May 3.1 This court noted that, in that earlier case, "[n]otwithstanding the time lapse this court held that the information was sufficient": Breton, at para. 48.
[63] Another example is found in R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, leave to appeal to S.C.C. dismissed [2014] S.C.C.A. No. 460, 2015 CanLII 1812. In that case, there was a challenge to the ITO relied upon to obtain an authorization to intercept private communications. The target, Lucas, was believed to be trafficking in firearms. Lucas [page339] challenged the information in the ITO on the basis that it was stale because it referred to activities that had taken place some three years earlier. This court rejected that challenge. This court said, at para. 140:
[W]e agree with the trial judge that in this case, the fact that guns had allegedly been supplied to Lucas some years before the investigation into the offences referred to in the ITO did not undermine the grounds for issuing the authorization to intercept his communications. The ITO provided reasonable grounds to believe that Lucas had not disposed of all the guns delivered to him by Cooke, that he had supplied guns to the Doomstown Crips in the past, and the surveillance evidence from January 2006 indicated that Lucas may have been transporting firearms. The ITO thus provided reasonable grounds to believe that Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons.
(Emphasis added)
[64] The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, [2011] B.C.J. No. 838, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:
Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.
[65] As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:
[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.
(Emphasis added)
[66] The suggestion, implicit in the respondent's position, that three weeks after the respondent was observed driving from London to Windsor in order to deliver a significant quantity of cocaine to MD, he became disassociated from, and unconnected with, drug trafficking finds no common sense foundation.
[67] In support of his position, the respondent relies on the decision in R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, [page340] 2010 SCC 8, where a warrant to search for evidence of possession of child pornography based on four-month-old information was held to have been improperly issued. In my view, the decision in Morelli does not assist the respondent. The decision in that case is very much fact driven. A particularly salient fact is that the links on the accused's computer to two possible child-pornography websites, that a technician had noticed, were gone when the technician returned to view the computer the next day. As Fish J. said, at para. 95:
At best, this may be a ground for suspicion, but surely the deleted links afford no reasonable and probable grounds to believe that the appellant was in possession of child pornography, and still less that evidence of that crime would be found upon a search of his computer.
[68] The decision in Morelli does not preclude reliance on a pattern of behaviour as part of the evidentiary foundation for the issuance of a search warrant. It merely requires that there be sufficient facts to provide that foundation. In Morelli, the court found that there were not sufficient facts. Here, as I have already explained, there is a pattern of conduct by the respondent based on the information that the police had gained from their investigation and the criminal record of the respondent. Put simply, there was offence specific information establishing a pattern of drug dealing involving the respondent.
[69] My colleague draws support for the trial judge's conclusion from R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707. However, that case also does not assist. Rocha involved the sufficiency of an ITO based on an informer's tip, and whether that tip was sufficiently credible and corroborated to tie drugs to a particular residence. The decision does not turn on whether the information was "dated", nor does it turn on any pattern of conduct.
[70] The trial judge also rejected the Crown's explanation for the delay in obtaining the warrant based on the fact that, had the police moved on the respondent's involvement earlier, it would have curtailed the broader ongoing police investigation. In response to this point, the trial judge said:
If they were after the bigger fish with respect to the firearms they should have left [the respondent] alone until they could achieve their purpose and go after him on the evidence that they had at the time.
[71] It is unclear to me what the trial judge meant by "on the evidence that they had at the time". The evidence that the police had was the evidence they put in the ITO. If the trial judge meant that, if the police had nothing further regarding the respondent when they moved on the broader investigation, they ought to have [page341] left the respondent alone, then that view reflects a fundamental misunderstanding of large-scale police investigations, and an extremely problematic one at that.
[72] As numerous large-scale police investigations have demonstrated, such investigations take time. During the course of those investigations, different individuals committing different offences may be identified at different times. It is common practice to address all such individuals, and all such offences, at the time that the broader investigation is completed -- the so-called "take-down day". This is done as a practical matter to avoid undermining the broader investigation. This necessary approach does not, of course, remove the need for the police to have the requisite grounds for the authorization at the time that they obtain it.
[73] If the thrust of the trial judge's decision here is, as I fear, that the police must either move immediately, when each of those offenders and offences is identified, or otherwise walk away from the prosecution of such persons, the result will seriously undermine the effectiveness, indeed the viability, of these types of investigations. The police will be left with the insolvable dilemma of either moving on the more peripheral but still serious offences immediately, and thus risk disrupting the larger investigation that often reflects more widespread and ongoing offences, or complete their investigation and walk away from the earlier offences revealed. Neither of those results is palatable in terms of public safety or proper law enforcement. With respect, no evidence is required to take into account such common sense real-world considerations.
[74] Further, any suggestion that the police should act on such offences and just hope that doing so will not jeopardize the larger investigation, imposes on the police a requirement to assume an unacceptable risk. It also potentially involves placing any police agents and undercover officers who might be involved in the investigation, as was the case here, at risk for their safety. No proper interpretation of s. 8 Charter rights compels such intolerable choices.
*** Note de l'auteur de ce blog: cette dissidence de la Cour d'appel de l'Ontario est avalisée par la Cour suprême - voir R. c. James, 2019 CSC 52 ***
Aucun commentaire:
Publier un commentaire