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Criminal - Confidential Informant. R. v. Ifesimeshone
In R. v. Ifesimeshone (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown criminal appeal, here against an "acquittal on serious drug trafficking charges" grounded in a Charter s.24(2) warrant exclusion of evidence after a S.8 search and seizure violation.
Here the court considers whether the confidential informant's information contained in the ITO was 'compelling', and whether corroboration of such evidence was required:(i) Was the Information Compelling?
[21] I accept the Crown’s argument that the trial judge made errors about whether the information from the confidential sources was compelling. She misapprehended the evidence in a manner that went to substance, not detail, and the misapprehension played an essential role in her reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[22] The trial judge’s conclusion that the confidential sources’ information was not compelling was a function of two misapprehensions of the evidence. First, she saw it as limited to “fairly basic biographical information”. Second, she said that to the extent it included information about the respondent’s drug dealing, it was not firsthand – unsourced in the case of one confidential source, and unclear as to whether it was rumour or hearsay in the case of the other.
[23] The information attributed to the confidential sources in the ITO included some biographical information, such as the respondent’s age, phone number, addresses and vehicles. On its own, that type of information is not compelling, since it is largely publicly available. However, the confidential sources’ information was not limited to that type of information. Both confidential sources referred to one of the addresses associated with the respondent having been searched by the police under a search warrant in the summer of 2020. This information was corroborated by the police. This is not information that would be generally known to the public, indicating the confidential sources had a deeper knowledge of the respondent’s activities. The trial judge failed to advert to that information or consider its effect.
[24] Second, and more importantly, the confidential sources’ information about the respondent’s drug trafficking activities, which included information about the types of drugs he dealt in and “specific information” about where his drug activities took place, was incorrectly characterized by the trial judge as all being unsourced or unclear as to its source. She said that it was unclear whether any of that type of information from one of the confidential sources was firsthand or simply hearsay or rumour from others. Yet, in respect of that very confidential source, the judicial summary stated that the (unredacted) ITO contained: “First-hand information about accused’s recent drug trafficking practice, including type of drug.”
[25] The trial judge’s misapprehension of the type of information that the confidential sources provided, especially her error about whether any of the information about drug dealing was firsthand, was central to her conclusion about whether the information was compelling. While information that takes the form of bald conclusory statements or rumour or gossip is not compelling, an informer’s personal, detailed and recent observations of drug trafficking may be considered compelling: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 18.
[26] Accordingly, on the question of whether the warrants could have issued, the trial judge’s error was material. The issuing judge could reasonably have taken the information from the confidential sources, whom the trial judge accepted as credible, to be compelling, as it revealed a level of close knowledge about the respondent and, in connection with drug trafficking, there was specific firsthand information from one of them.
(ii) Was the Information Corroborated?
[27] The Crown also argues that the trial judge misapplied the law in the way she addressed whether the confidential sources’ information was corroborated. Although the trial judge correctly instructed herself that corroboration of criminal activity is not required, she placed such a heavy emphasis on its absence as to have in effect required it.
[28] In her reasons, the trial judge stated that “there was a failure on the part of the police to corroborate the most important details of the confidential sources’ information – that drug activity was in some way associated to the addresses and cars named as places or things to be searched.” She mentioned the police having confirmed the respondent being a tenant at two of the addresses (including Vaughan), having seen his car parked there, and his having entered it and driven to another location. But she immediately followed that with the comment: “Nothing, however, having to do with drug activity was noted in these observations.” Although the police had confirmed the respondent’s age, phone number, cars, addresses and the prior search, she still referred to the “complete lack of corroboration by the police”. She stated that “[p]rior to the police entering three different residential premises, some corroboration of drug activity is required.”
[29] I agree with the Crown that the trial judge’s approach reflects an error.
[30] First, it is an error to require the police to have obtained confirmation of the informer’s description of the accused’s criminal activity. As Rosenberg J.A. said in Rocha, at para. 22, “[t]he police will rarely be able to corroborate [an informer’s information] to the extent of having observed commission of the offence and that level of confirmation is not required”. He went on to state, at paras. 23-24, that corroboration of details the informer provided, even if not of the criminal activity, cannot be disregarded if it substantiates the reliability of a source’s information (see also R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 40). This court has held that all corroborative information, even of neutral facts, must be taken together: R. v. Brown, 2021 ONCA 119, 403 C.C.C. (3d) 457, at paras. 52-55.
[31] Although the trial judge referred to the lack of a requirement for such confirmation of criminal activity, her repeated references to the absence of this type of corroboration elevated its importance such that it was effectively a requirement, especially since she discounted all other corroboration the police obtained.
[32] In any event, the question for the trial judge was not whether, if she had been the issuing judge, she would have discounted the value of the available corroboration and been concerned with the lack of corroboration of criminal activity. Nor was the question whether she would have found that more surveillance was required. As Watt J.A. said in Sadikov, at para. 88:It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record ... [or] to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued….
In this case, the issuing judge could have considered the actual corroboration to be germane, and the lack of corroboration of drug activity to be something that was neither required nor expected, as in the end it was the corroborated information, considered in totality, rather than any aspect in isolation, that mattered: Brown, at paras. 52-55. . R. v. Cartmer
In R. v. Cartmer (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal conviction appeal, here on Charter s.8 warrant issuance grounds on evidence from a confidential informant:[2] At trial, the only issue was whether evidence obtained further to a search warrant issued under s. 487 of the Criminal Code was obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms and should be excluded under s. 24(2). The trial judge dismissed the appellant’s application to exclude the evidence, concluding that the issuing justice “could have issued the authorization [for the warrant] on the record before her.”
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[11] The test for the trial judge on her review of the warrant application was “whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued,” not whether the application for the warrant should have been granted at all: R. v. Vu, 2013 SCC 60, [2013] S.C.R. 657, at para 16. The standard is “credibly based probability”: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81, citing Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167. The issuing justice may draw inferences from the facts set out in the ITO, so long as those inferences are reasonable: R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241, at paras. 96, 101; R. v. Jones, 2023 ONCA 106, at para. 14.
[12] The test for this court is whether the reviewing judge erred in law in her interpretation and application of that standard. The scope of appellate review is quite narrow: Jones, at para. 11.
[13] The affidavit in support of the ITO must be truthful and should fully and plainly set out the facts. The reviewing court is concerned with identifying any deficiencies in the ITO that might have misled the authorizing judge including overstatements, misstatements, or a failure to state material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 47, 53. The reviewing court determines, based on the ITO as excised and potentially amplified, whether there is “sufficient credible and reliable evidence upon which the issuing judge could be satisfied that there were reasonable and probable grounds to issue the warrant”: R. v. Mackey, 2020 ONCA 466, 392 C.C.C. (3d) 230, at para. 54.
[14] In a case where the ITO relies on tips from a CI, the court must consider whether the tips are compelling, whether they come from a credible source, and whether the tips are corroborated. The ITO must include information that will allow the issuing justice to assess the CI’s reliability, and explain what makes the tips compelling, including unfavourable details, if any, about the informer. The court will consider the totality of the evidence. A weakness in one area may be compensated by strengths in the other two factors: Jones, at para. 12 citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168; R. v. Crevier, 2015 ONCA 619, at para. 68. . R. v. Buffong
In R. v. Buffong (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal where 'confidential informant' issues arose:[3] First, the appellant argued there was not reasonable suspicion to justify an investigative detention because there was no information about the credibility of the confidential informant who provided information to the police. As a result, the appellant argued that the detention violated his rights under s. 9 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.
[4] The appellant’s argument relies on the factors from R. v. Debot (1986), 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, used by the courts to objectively scrutinize the confidential informant tips relied on by police – whether a tip is compelling, credible, and corroborated. The Debot factors were developed in the context of the reasonable and probable grounds standard for a search warrant or arrest. The Supreme Court has recognized that the Debot factors may be helpful in objectively assessing whether the reasonable suspicion standard is met in cases where a tip from a confidential informant forms part of the basis for an intrusion on an individual’s liberty; however, the factors are applied more leniently because reasonable suspicion is a lower standard than reasonable and probable grounds: R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 53. The ultimate standard against which an investigative detention is judged is whether the totality of the circumstances provides reasonable grounds to suspect that the person is involved in the type of criminal activity under investigation: R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, at para. 34; and R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 25-35.
[5] Even in the context of the reasonable and probable grounds standard, weakness in one of the Debot factors can be compensated for by strength of the other factors: Debot, at p. 1168. A judge considering the validity of an investigative detention must consider whether the totality of the circumstances rises to the level of reasonable suspicion.
[6] In this case, we see no error in the trial judge’s conclusion that the totality of the circumstances provided reasonable suspicion for an investigative detention of the appellant to investigate a firearms offence. When the information in the confidential informant tip is considered along with the police observations at the bus station, the totality of the circumstances was sufficiently compelling and corroborated to meet the reasonable suspicion standard.
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