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Police Powers | Search Warrant

Issuance of search warrant based on information from paid police informants and brief surveillance was reasonable.

Police Powers

Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

1. Compelling, Credible and Corroborated Tips Sufficient to Support Search Warrant

Facts: Police received information from two confidential informants, “A” and “B”, who said the respondent was selling prescription drugs from her home. Both sources said that customers would buy drugs at the front door. Both sources told police what she charged for the pills, how she acquired them, and both stated that she kept the drugs locked in a safe in the basement.

Source “A” was a paid informant and drug user who had been providing information to the police for one month, resulting in one prior arrest. Source “A” gave the police the respondent’s first name and address, and indicated that she lived there with a man named “Billy” who had facial tattoos. Source “A” said Billy drove a blue-grey van that he parked on the street in front of the house.

Source “B” was also a paid police informant, admitted drug user and had a criminal record (though not for crimes of dishonesty). Source “B” had been providing information to police on a regular basis over a period of two and a half years. Source “B” was paid for information between one and five times, leading to the prior arrest of between five and ten individuals.

Following receipt of the tips, police conducted surveillance outside the respondent’s residence. Over a period of 92 minutes, police watched six individuals attend at the residence for brief periods of time. Police also observed a blue-grey van parked on the road outside the residence. Database searches confirmed the identity of owner of the van.

Police applied for a warrant to search the residence. The information to obtain (”ITO”) stated both confidential informants were “reliable” and that information obtained from Source “B” had been consistent with information obtained from Source “A” and limited police surveillance.

The trial judge found that the information received from the confidential informants was not sufficiently compelling, credible or corroborated by police investigation, and excluded the fruits of the search under s. 24(2). The Crown appealed.

Held: Appeal allowed.

The information provided by the confidential informants was compelling, credible and corroborated with the meaning of the “totality of the circumstances” test set out in R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1168 and R. v. Garofoli, [1990] 2 S.C.R. 1421 at pp. 1456-1457. (See also: R. v. Poirier, 2009 NLTD 35.) In particular, source “B” gave specific, detailed information that established reasonable grounds to believe that the respondent kept illegal drugs at her residence and was engaged in trafficking. According to the Court of Appeal, the information from Source “B” did not become less compelling because the surveillance conducted by the police was brief; establishing by surveillance the occurrence of activity which was consistent with that described by a source was found to be both probative and corroborative.

There was also a sufficient basis for the issuing justice to conclude that information provided by the confidential sources was credible. Source “B” had successfully provided information to the police on a regular basis for approximately two and a half years; that information had led to a number of arrests. It was therefore reasonable to infer that the police found his information to be reliable. That the information obtained from each source tended to confirm the other source’s information was found to enhance the overall reliability of the information.

Commentary: This case represents a straightforward, well-articulated summary of the controlling principles with respect to the standard to be applied in reviewing the issuance of search warrants, particularly those where substantial reliance is placed upon information derived from paid police informants. The Court made helpful distinctions between reliance on known police informants, as found in the case, who have track records for reliability and whose observations may be corroborated, as opposed to purely anonymous informants, whose reliability often cannot be tested. The Court also iterated the long standing principle that, on the review of any search warrant ITO, the reviewing court must remain focused on the ITO “as a whole” rather than “parsing and microscopically examining words, phrases or paragraphs in isolation”. (see R. v. Saunders, 2003 NLCA 63 at para. 9; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (O.C.G.D.) at p. 365.)

R. v. Whalen (2015), 2015 NLCA 7, 2015 CarswellNfld 44 (N.L. C.A.)

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