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CASE LAW – ITO contents not to be viewed in isolation


April 13, 2015
By Mike Novakowski

A judge reviewing a search warrant is not to re-hear the warrant and decide whether it should have been issued.

In <R. v. Whalen, 2015 NLCA 7> two confidential informants stated that Denise Whalen was selling prescription drugs, including Ritalin, morphine and Oxycontin, from her home. They told police that people came to her front door to buy pills, completed the transactions very quickly and then left.

The sources gave the prices charged for the pills, told officers how she acquired them and that they were kept in a locked safe in Whalen’s basement.

Source A – a paid informant and admitted drug user with no criminal record who had provided information for one month, resulting in one arrest – said Whalen lived at the address with William “Billy” Whalen, who had facial tattoos and kept his bluish/grey Montana van parked in front of the house.

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Source B, a drug user with a criminal record (but no dishonesty or deceit offences) reported seeing 10 to 15 drug transactions shortly before the search warrant was issued. A confidential police informant for approximately 2.5 years, the source met weekly with police, providing intelligence about criminal activity on a regular and ongoing basis consistent with information received from others.

Source B had been paid for past information that had led to between five and 10 arrests but there was no evidence of any resulting convictions.

Police immediately set up surveillance and observed short visits by no fewer than eight people to the home over a 92 minute period. Officers confirmed from a police database that the Whalens lived at the address, and that Mr. Whalen had facial tattoos. Surveillance also confirmed that he kept his bluish/grey Montana van parked in front.

Police set out the information from the two confidential informants, described as reliable, and from surveillance in an ITO and were given a search warrant under <s. 11> of the Controlled Drugs and Substances Act. As a result, both Whalens were charged with drug offences.

At trial, a Newfoundland Provincial Court judge reviewed the warrant and concluded there was insufficient grounds in the ITO for it to be issued. He ascribed little weight to the information from source A because of limited past performance (only for a month) and insufficient familiarity to provide the Whalen surname. It was also unclear how the source came upon the information or knew the drugs and cash were locked up in a basement safe.

Although the information regarding the reliability of the second source was stronger, it was still insufficient to provide a valid basis to issue the search warrant. Despite some corroboration of Ms. Whalen’s residence by independent police database searches, surveillance had not yielded any probative evidence of illegal activity.

In quashing the warrant, the judge noted it was not possible to infer that two of the four females sighted entering or leaving were other than residents and there was no corroborative evidence of illegal activity involving Ms. Whalen.

The Crown appealed to Newfoundland and Labrador Court of Appeal. It argued the trial judge erred in concluding the issuing judge had insufficient information for reasonable grounds that an offence had been committed and that evidence would be found in MS. Whalen’s house.

A search will be “reasonable” under <s. 8> of the Charter if it is authorized by law, the law is reasonable and the search is conducted in a reasonable manner. When a search warrant is properly issued the search is authorized by law and presumed to be valid unless the accused demonstrates its invalidity.

Justice Barry, speaking for the unanimous court, stated the test for reviewing the validity of the search warrant was as follows:

[para. 18].

The concept of “reasonable grounds to believe” is “the point where credibly-based probability replaces suspicion.” Grounds for a search must go beyond subjective belief and mere suspicion; it is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case.”

A judge reviewing the issuance of a search warrant is not to substitute their own view for that of the issuing judge and should show a high degree of deference by determining whether they, on the basis of the record, could have granted the warrant.

“A reviewing judge does not conduct a rehearing of the application for a warrant,” said Barry. “The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could be issued.”

In assessing reasonable grounds, the totality of circumstances in the ITO are to be considered as a whole, not by “parsing and microscopically examining the words, phrases or paragraphs in isolation.”

Three concerns arise when reviewing the sufficiency of information set out in an ITO: was the information predicting the offence compelling, was the source of the information credible and was the information corroborated by police investigation? Corroboration or confirmation of the offence itself is not required.

In this case, the information provided by source B was compelling because it provided specific and convincing detail regarding Ms. Whalen’s drug trafficking activity, including what she was selling, where and how she sold it and how much she charged. The credibility was strong.

<The source of the knowledge is the personal observation of “B”. Indicia of the reliability of “B” are past performance over 2½ years as well as consistency with information obtained by police from other sources and, to some extent, consistency with searches of police data bases and with the brief surveillance.

In addition, the information supplied by Sources “A” and “B” provides some corroboration for each other’s statements> [paras. 40-41].

The credibility of source “B” was also enhanced by certain corroborative information. First, although the information from the first source was less reliable, there was some corroboration because of the similarity of the information regarding the types of drugs, how they are sold and where they are stored. Further:

<There is also some corroboration from the comings and goings during the police surveillance, consistent with the brevity of the transactions described by the sources, even allowing for the fact that much of the activity may have been nothing more than that of a normal household. At least four individuals made visits to the Whalen premises of such a short duration as to be consistent with the sources’ statements regarding the type of activity they observed.

Some further corroboration of neutral facts came from the police search of data bases, where the information of the sources regarding the address of Ms. Whalen was confirmed, as well as the presence of Mr. Whalen and his vehicle> [para. 43].

The trial judge substituted her opinion for that of the issuing judge rather than asking whether there was a basis to issue the warrant. The court concluded there was sufficient information in the ITO, in the totality of the circumstances, to establish reasonable grounds to believe that drugs would be present at the premises on the day the warrant was executed.

The reference by both sources to drugs and money being kept in a safe in the basement, and the specific details regarding types of pills, moved the corroboration evidence beyond “general public knowledge.”

It was also a reasonable inference from the information that Denise Whalen kept her stash “topped up” so illegal prescription pills would be found.

said Barry.

The trial judge erred in quashing the search warrant, the warrant was valid, there was no Charter breach and no basis to exclude the evidence found in the search. The Crown’s appeal was allowed and the matter was remitted for a new trial.