


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacDonald, 2012
    ONCA 244

DATE: 20120418

DOCKET: C50733

Laskin, Goudge and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessiah MacDonald

Appellant

Michael Dineen, for the appellant

Randy Schwartz, for the respondent

Heard: September 14, 2011

On appeal from the conviction entered on April 16, 2009
    by Justice Paul French of the Ontario Court of Justice, sitting without a jury.

Laskin J.A.:

A.

introduction

[1]

Acting on an anonymous Crime Stoppers tip, the police obtained a warrant
    to search the residence where the appellant, Jessiah MacDonald, lived.  Police
    officers conducted the search in the middle of the night.  They found two
    loaded handguns.

[2]

The appellant was charged with illegal possession of the handguns,
    breach of recognizance and several related offences.  The sole issue at trial
    was whether the grounds to issue the warrant were sufficient.  The trial judge
    ruled that the grounds were sufficient, and that, therefore, the appellants
    right under s. 8 of the Canadian
Charter of Rights and Freedoms
to be
    secure against unreasonable search or seizure had not been breached.

[3]

Following the trial judges ruling, the handguns were admitted into
    evidence, the appellant conceded the Crowns case, and the trial judge
    convicted him of the offences as charged.  The appellant was sentenced to two
    years less a day in prison plus three years probation.  He appeals his
    convictions.

[4]

The appellant makes two submissions: (1) the trial judge erred in
    finding that there were sufficient grounds to issue the warrant.  In
    particular, the appellant argues that the police did not corroborate the
    anonymous tip in any meaning way, and that they exacerbated the
    unreasonableness of their search by conducting it in the middle of the night;
    (2) the handguns should not have been admitted into evidence under s. 24(2) of
    the
Charter
.

B.

the legal framework

[5]

Before discussing the anonymous tip and the polices efforts to
    corroborate it, I shall briefly address the legal framework that governs this
    appeal.  There are two aspects: the requirements for authorizing the issuance
    of a search warrant, and the standard of review.

(1)

The Requirements for
    Authorizing the Issuance of a Warrant

[6]

The justice issuing the warrant must have reasonable grounds to believe
    that an offence has been committed.  The standard is one of reasonable
    probability.  The material in support of the warrant must raise a reasonable
    probability of discovering evidence of a crime.  See
R. v. Debot
, [1989]
    2 S.C.R. 1140.

[7]

Where the application for the warrant is based largely on information
    coming from a confidential informant, the court must make three inquires:

·

Was the information predicting the crime compelling?

·

Was the source of the information credible?

·

Was the information corroborated by the police before conducting
    the search?

These are not watertight inquiries.  It is the
    totality of the circumstances that must meet the reasonable probability
    standard.  See
Debot
,
supra
.

[8]

So, for example, where, as in this case, the police rely on information
    coming from an anonymous source, the second inquiry is problematic.  The court
    has no way to assess the credibility or reliability of the source.  Thus, the
    quality of the information (the first inquiry) and the amount of corroboration
    (the third inquiry) must compensate for the inability to assess the credibility
    of the source.  A higher level of verification is required.  See
R. v.
    Hosie
, [1996] O.J. No. 2175 (C.A.) at para. 15.

(2)

Standard of Review

[9]

A judge reviewing the authorization of the issuance of a warrant has a limited
    mandate.  That mandate was set out by Sopinka J. in
R. v. Garofoli
, [1990]
    2 S.C.R. 1421 at 1452:

The reviewing judge does not substitute his or her view for
    that of the authorizing judge.  If based on the record which was before the
    authorizing judge as amplified on review, the reviewing judge concludes that
    the authorizing judge could have granted the authorization, then he or she
    should not interfere.

[10]

Here,
    the record before the authorizing judge was neither amplified nor excised on review. 
    Thus, the question for the reviewing judge was whether the authorizing judge
    could have issued the warrant.

[11]

On
    appeal of the reviewing judges decision, the usual principles of appellate
    deference apply.  This court should not interfere unless the reviewing judge
    erred in law or made an unreasonable finding of facts.  See
R. v. Ebanks
,
    [2009] O.J. No. 5168 (C.A.).

C.

did the trial judge err in finding that there were sufficient grounds to
    issue the warrant?

(1)

The Crime Stoppers
    Tip

[12]

In
    April 2008, the Toronto Police Service received a Crime Stoppers tip about the
    appellant from an anonymous source.  According to the tipster, the appellant
    was born on January 24 (no year provided), used the alias Morrison, and lived
    with his surety in Etobicoke.

[13]

The
    tipster described the appellant as a non-white male, 6-feet 2-inches tall, 160
    pounds, with long black hair and brown eyes.  He said that the appellant had a
    tattoo of a spider web on his hand.

[14]

The
    tipster also said that the appellant had drugs and guns at his home, and is a
    known gun carrier and drug dealer.  He claimed that he had seen the appellant
    flashing his gun.  Finally, the tipster said that the appellant could be
    found at his mothers or his uncles house and that he was driving a rented
    car.

(2)

The Polices
    Corroboration of the Information Provided by the Tipster

[15]

Because
    a central question on this appeal is whether the police sufficiently
    corroborated the tipsters information before conducting the search, I
    summarize in chart form the information given by the tipster and the
    corroboration of that information.  In doing so, I rely largely on the helpful
    chart provided by Crown counsel, Mr. Schawrtz, in his factum.




Information Given by the
            Tipster

Corroboration




The appellants date of birth is
          January 24.

Police databases confirm that the
          appellants date of birth is January 24, 1988.



The appellant is male, non white, 6
          2 tall and 160 pounds, with black long hair and brown eyes.

CPIC describes the appellant as male,
          non white, 6 4 tall and 146 pounds.



The appellant has a tattoo of a
          spider web on his hand.

CPIC describes the appellant as
          having a tattoo of a spider web with flames on his left hand.



The appellant is a drug dealer and
          has drugs in his house.

In January 2006, the appellant was
          found in possession of 6.58 grams of crack cocaine and was charged with
          possession for the purpose of trafficking.  He was ultimately convicted of
          possession of cocaine.



The tipster saw the appellant
          flashing his gun, and the appellant has guns at his house.

The appellant has a lengthy criminal
          record.  His record lists several serious offences of violence, including
          assault, robbery, assault with intent to resist arrest, aggravated assault,
          carrying a concealed weapon, and escaping lawful custody.

In January 2006, the appellant was
          found in possession of a loaded AK 47 assault rifle that had been converted
          to fire ammunition in fully automatic mode.  He was convicted of possession
          of a prohibited firearm.

The police affiant, a member of the
          Guns and Gangs Task Force, knows that it is very common for drug traffickers
          to arm themselves.

The appellant was bound by two
          separate firearms prohibition and probation orders that prohibited possession
          of a weapon.



The appellant uses the alias
          Morrison.

CPIC lists Morrison as the
          appellants alias.



The appellant resides at his suretys
          house.

The appellant is currently before the
          court  accused of aggravated assault and several related offences.  The
          allegations pertain to a stabbing in which the appellant allegedly chased
          down the victim and stabbed him in the back and slashed his face.  As a
          result of these charges, the appellant is bound by a recognizance that
          requires him to reside with his uncle under house arrest.

On April 7 and April 8, 2008, police
          observed the appellant coming and going from his uncles house.



The appellants suretys house is in
          Etobicoke.

The appellants uncles house is
          located at 54 Alhart Drive, in the north-west area of Toronto near Islington
          Ave and Albion Rd.



The appellant usually hangs out at
          his mothers house or at his uncles house.

Police occurrence reports confirm
          that the appellant has resided with his mother in the east end of Toronto and
          has been investigated by the police in that area on numerous occasions.



The appellant is affiliated with a
          gang.

No corroboration.



The appellant drives a rental
          vehicle.

On April 7 and April 8, 2008, police
          observed the appellant driving a vehicle registered to a car rental company. 
          On April 8, 2008, police observed the appellant attending at the car rental
          outlet and exchanging one rental car for another.



(3)

The Trial Judges
    Ruling

[16]

The
    police conducted the search in 2008; the application to exclude the handguns
    from evidence was heard in December 2008 and January 2009; and the trial judge
    gave his ruling dismissing the application on February 3, 2009.  After
    reviewing the facts (which were put before him by an agreed statement) and the
    applicable principles, the trial judge concluded:

Having considered the evidence and the submissions of counsel,
    I adopt the position of the Crown.  In my view, the police might have done
    more; however, considering that they had information of guns on the street, so
    to speak, they did that which was reasonable.  In my view, the surveillance
    conducted by the police was reasonable.  I find that their investigation
    provided some reasonable corroboration of the information received from the
    anonymous tipster.  Considering the totality of the circumstances, in my view,
    the authorization could have been given for the search warrant to have been
    issued.  The application is therefore dismissed.

(4)

Were the Grounds to
    Issue the Warrant Sufficient?

[17]

The
    main question on this appeal is whether the trial judge erred in concluding
    that the authorizing justice could have been satisfied that the reasonable
    grounds standard was met.  In my view, he did not err.  He stated the correct
    test on review, and his finding that the justice could have authorized the
    issuance of the warrant was a reasonable finding.

[18]

Because
    the credibility of the source cannot be determined, the totality of
    circumstances assessment must focus on whether the tipsters information was
    sufficiently compelling and whether it was sufficiently corroborated.

[19]

The
    appellant says that the information given by the tipster was not particularly
    compelling; the Crown says that it was very compelling.  I come down in the
    middle.  I would make two points.  First, although a good deal of the
    information was biographical, and thus likely widely known, it was nonetheless
    very detailed.  The tipster provided specific information about the appellants
    appearance, date of birth, place of residence, alias, bail status, family
    connections and driving practices.  Second, the tipster had first-hand
    knowledge that the appellant was involved with guns.  He saw the appellant
    flash a gun.

[20]

In
    the light of these two points, the information given by the tipster was
    reasonably compelling.  However, I agree with both parties that this ground of
    appeal turns on whether the police sufficiently corroborated the information,
    bearing in mind that the anonymity of the source called for more confirmation
    than otherwise.  At the same time, the police were not obliged, before
    conducting the search, to confirm the very criminality alleged by the tipster. 
    See
R. v. Lewis
, [1998] O.J. No. 376 (C.A.) at para. 22; and
R. v.
    Caissey
, [2007] A.J. No. 1342 (C.A.); affd [2008] 3 S.C.R. 451.

[21]

It
    seems to me that the police largely confirmed the tipsters information.  The
    police record and data banks confirmed the accuracy of the detailed biographical
    information given by the tipster.  I accept that on its own, this degree of
    confirmation likely would not be sufficient to justify the authorization.

[22]

However,
    the police investigation also confirmed that the appellant had in the past
    possessed both drugs and guns, and was a known violent offender, who was bound
    by two separate firearms prohibitions and probation orders prohibiting the
    possession of guns.  Admittedly, this history was drawn from the appellants
    criminal record.  The appellant argues that a criminal record may provide some
    independent confirmation of a tipsters information but should not be given a
    great deal of weight.  He correctly points to Martin J.A.s observation in
Debot
that although a criminal record deserves some weight, by itself it does not
    make out reasonable probability.

[23]

Accepting
    that to be so, the cogency of the criminal record depends on its similarity to
    the criminal activity alleged by the tipster and the age of the record.  Here,
    the appellant was convicted of possession of a prohibited firearm, the very
    criminal activity the tipster alleged, and that conviction was registered
    within two years of the anonymous tip.  These considerations give the criminal
    record a fair measure of cogency.

[24]

Overall,
    the appellants record together with the confirmation of the detailed biographical
    information given by the tipster reasonably support the trial judge conclusion
    that the authorizing justice could have granted the authorization.  I would not
    give effect to this ground of appeal.

(5)

Was the Search
    Unreasonable Because if was Conducted at Night?

[25]

The
    affidavit in support of the warrant sought authorization under s. 488 of the
Criminal
    Code
the execute the warrant at night, on the following grounds:

I am respectfully requesting that a night time entry (after
    9:00 PM) be granted with respect to the execution of the search warrant for 54
    Alhart Drive.  I am requesting night tome entry to ensure police officers are
    given enough time to gather the resources necessary to execute this warrant. 
    Any delay in the execution of this warrant could result in the loss of
    evidence.  Any delay in seizing the firearm places members of the public in
    danger.

[26]

The
    authorizing justice granted authorization for night time entry.  The police
    conducted the search at the residence of the appellants uncle just before 3:00
    a.m. on April 9, 2008.  By that time, the appellant was already in custody. 
    Earlier that night he had been arrested for failing to comply with his
    recognizance.  In this factual context, the appellant submits that the search
    was unreasonable because it was conducted at night.  I do not accept this
    submission.

[27]

The
    appellants submission raises two separate issues.  The first issue is whether
    the authorizing justice had a reasonable basis to authorize a night time
    search.  When the authorization was granted, the appellant was not in custody. 
    In my opinion, the grounds in the affidavit provided a sound basis to allow the
    warrant to be executed at night.

[28]

The
    second issue  the issue the appellant focuses on  is whether the police ought
    to have delayed the search until day time because the appellant was in
    custody.  In my view, the police were justified in not delaying the search and
    instead conducting it in the middle of the night.  The appellant did not live
    alone; he shared the residence with others.  The police had reasonable and
    probable grounds to believe there were firearms in that residence.  And even
    though the appellant was in custody, he had the opportunity to contact the
    other occupants and tell them to hide or remove the guns.  Thus, the police had
    a legitimate concern that if they waited to execute the warrant, they would
    compromise public safety and put the community at risk.

[29]

Night
    time searches of a private residence should be carried out only in exceptional
    cases.  See
R. v. Sutherland
(2000), 52 O.R. (3d) 27 (C.A.).  This is
    one of those cases.  The situation might well have been different if the
    appellant lived alone.  But he did not.

[30]

Moreover,
    the following considerations mitigated the intrusiveness of the search: the
    police told the appellant about their proposed search before they carried it
    out; there is no evidence that they conducted a no knock entry, or that they
    had their guns drawn, or even that they frightened anyone.  In the light of all
    these circumstances, the night time search was not unreasonable.

[31]

Because
    I have concluded that the search did not breach s. 8 of the
Charter
,
    it is unnecessary to address the second issue raised by the appellant, the
    application of s. 24(2) of the
Charter
.

D.

conclusion

[32]

The
    trial judge did not err in concluding that the authorizing justice could have
    authorized the issuance of the search warrant.  I would dismiss the appeal.

Released: Apr. 18, 2012                                         John
    Laskin J.A.

JL                                                                     I
    agree S.T. Goudge J.A.

I
    agree H.S. LaForme J.A.


