IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Rhodenizer, 2003 NSPC 017 Date: 20030408 Docket: 1208549 Registry: Bridgewater Between: Her Majesty the Queen v. Lance Boyd Rhodenizer Judge: The Honourable Judge Crawford Heard: April 8, 2003, in Bridgewater, Nova Scotia Written Decision: May 14, 2003 Counsel: Franceen Romney, for the Crown Alan Ferrier, for the Defence By the Court: [1] The defendant has made an application for the exclusion of evidence found following a search conducted at his residence pursuant to a warrant issued by fax from the Justice of the Peace Centre in Dartmouth, N.S. [2] The defendant argues: (1) that the information to obtain the warrant did not meet the test in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, and therefore that the warrant should not have issued; (2) that the search was therefore warrantless, breached his Charter s. right to be free from unreasonable search and seizure, and that evidence obtained by it should be excluded under s. 24(2) of the Charter of Rights and Freedoms. [3] The grounds stated in the Information to Obtain were: THAT on June 5th, 2002 the informant received information from reliable source (SOURCE #1), that Lance Rhodenizer of 196 High St., Apr. #2 of Bridgewater was selling marihuana for $13.00 gram. He also had magic mushrooms for $10.00 gram, and mescaline for sale. The source advised if person purchased gram of marihuana and mushrooms, the cost was $22.00 total. The informant also stated he/she had purchased marihuana from Mr. Rhodenizer in the past and that Mr. Rhodenizer purchases his narcotics from the city. This source has provided information to the informant in the past that has resulted in charges of possession for the purpose of trafficking and straight possession of marihuana under the Controlled Drugs and Substances Act. THAT on June 20th, 2002, S/Cst. Laliberte of the Bridgewater Police Department spoke to male (SOURCE #2) who wanted to remain anonymous. This person stated there was lot of traffic going to the basement apartment at 196 High Street. He also stated there was strong smell of marihuana coming from this apartment. The informant knows this location to be Mr. Rhodenizer’s apartment. THAT on July 2nd, 2002, the Bridgewater Police dispatch received an anonymous complaint from female (SOURCE #3) that Lance Rhodenizer of 196 High Street, Apt. #2 was selling and using drugs from his residence. This female also provided police with some of the vehicle plates that were attending the residence on regular occasions. THAT on July 9th, 2002, the informant and D/Cst. Feener spoke to confidential informant (SOURCE #4) with unknown reliability. He/she stated Mr. Rhodenizer was selling marihuana from his apartment. He/she also stated sometimes Rhodenizer has more than just marihuana for sale. He/she said there was lot of people coming to the apartment staying for brief periods of time (approximately 10 minutes). THAT on July 9th, 2002 D/Cst. Feener of the Bridgewater Police Department checked the Town’s water billing books and found the water bill for 196 High Street Apt #2 was in the name of Lance Rhodenizer. THAT on the 10th and 11th of July, 2002, the informant and D/Cst. Feener of the Bridgewater Police Department conducted surveillance on 196 High Street, the building in which Mr. Rhodenizer resides. Over an approximate two hour time period each night, high volume of car and pedestrian traffic was noted coming and going from the apartment building. This building has six rental units total. The individuals coming and going were noted to enter and leave the building within to 10 minutes and were noted to enter by the front entrance and go downstairs. There are two apartments located downstairs from the main entrance. Mr. Rhodenizer’s residence is one of these two units. THAT on the 11th of July, 2002, the informant spoke to reliable source (source #1) who advised he/she had purchased cannabis (marihuana) within the previous 48 hours at the residence of Lance Rhodenizer. THAT on the 16th of July, 2001[sic], the informant spoke to reliable source (source #1) who advised he/she had purchased cannabis (marihuana) within the previous 48 hours from Lance Rhodenizer. [4] D/Cst. Collyer, the informant in the Information to Obtain, testified in support of the warrant and was closely cross-examined by defence counsel. [5] In summary, the defendant points to the following flaws revealed by cross-examination: 1. Source #1, although stated to be reliable, had never given information which resulted in conviction. 2. Source #2 was anonymous and therefore of unknown reliability. Cst. Collyer was unable to state with certainty whether the "informant" referred to in the last sentence of the second paragraph referred to source #2 or to himself. It is therefore unclear whether the source knew the apartment belonged to the defendant; if not, he may have been speaking about the other basement apartment at 196 High Street. 3. Source #3 was also anonymous and therefore of unknown reliability, although Cst. Collyer deemed her information reliable because it provided corroboration for other sources. 4. Source #4's reliability was unknown; no specific dates were given. 5. The fact that on July D/Cst. Feener had to obtain the defendant's apartment number from town records makes it doubtful that the sources referred to in paragraphs 1-4 actually supplied that information; it appears more likely that at least part of the address given in those paragraphs was supplied by D/Cst. Collyer's later knowledge. D/Cst. Collyer was unable to state whether or not this was so. 6. The surveillance conducted on July 10th and 11th was ineffective in distinguishing which of the two basement apartments in the building was attracting the traffic. 7. Source #1 did not state whether the marihuana purchased from the defendant's residence on July 11 was bought from the defendant personally or from someone else at that address. 8. As to paragraph 8, D/Cst. Collyer stated that "2001" was typographical error and that the information was received on July 16th, 2002. He admitted that this was not questioned by the Justice of the Peace. He also admitted that there was no indication as to where the purchase from the defendant took place. 9. Generally he stated that he kept no notes regarding the contacts referred to in his Information and relied on receipts from paid informants to remember relevant dates, which was the practice at that time. He states that now notes are kept. He also confirmed that he had not spoken personally to the Justice of the Peace and that the only information on which she issued the warrant was what was contained in his written Information. Should the warrant have issued? [6] The Supreme Court of Canada set out the role of judge in reviewing the issuance of warrant in R. v. Araujo 2000 SCC 65 (CanLII), [2000] S.C.R. 992 as follows: 51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct rehearing of the application [page1017] for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 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 the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Emphasis added.] As noted as judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even basis that is schematic in nature may suffice. However, as our Court has recognized, it must be basis founded on reliable information. In R. v. Bisson, 1994 CanLII 46 (SCC), [1994] S.C.R. 1097, at p. 1098, the requirement was described as "sufficient reliable information to support an authorization" (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. 53 Other appellate court jurisprudence confirms this understanding. In the context of reviewing search warrant, appellate courts have looked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 1999 BCCA 186 (CanLII), 123 B.C.A.C. 263; R. v. Allain (1998), 1998 CanLII 12250 (NB CA), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v. Krist (1998), 1998 CanLII 6105 (BC CA), 113 B.C.A.C. 176, at p. 179. But they look at this in context. For example, in R. v. Monroe (1997), 1997 CanLII 3034 (BC CA), C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized warrant, "The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant" (emphasis added). 54 The authorities stress the importance of contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace: An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [7] In other words, rather than subjecting the Information to Obtain to paragraph by paragraph dissection, should look at it as whole and decide whether there was sufficient reliable evidence which might reasonably have been believed by the Justice of the Peace on which she could have issued the warrant. [8] In this process, should apply the test and criteria set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.R. 1140: ¶53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify warrantless search. First, was the information predicting the commission of criminal offence compelling? Second, where that information was based on "tip" originating from source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? do not suggest that each of these factors forms separate test. Rather, concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [9] Looking first at the nature of the evidence, over all I find that it was compelling. Noting the progression of dates in each succeeding paragraph of the Information, accept D/Cst. Collyer’s testimony, and find that it is reasonable to conclude, that the year “2001" in the penultimate paragraph was typographical error and was intended to read "2002". So four apparently separate and independent sources over the month and a half prior to the warrant application all confirmed, with varying amounts of detail, either that the defendant was selling drugs or that drugs were being sold or used at his apartment, or both. There was therefore evidence on which the Justice of the Peace could conclude that this was continuing activity and that it was on-going at the date of the warrant application. [10] In regard to the credibility of the sources, although individually none of these sources was of known or proven reliability, collectively they reinforce and confirm each other. [11] Finally the police did not seek a warrant on the basis of this information alone, but conducted surveillance, which corroborated the information provided by their sources. To suggest that the traffic could have been going to the other basement apartment is to propose level of coincidence that is highly improbable in the light of the information provided by the four sources. Conclusion [12] I find that there was sufficient reliable evidence to constitute the reasonable and probable grounds for issuance of this warrant. In doing so, note that the standard of proof for issuance of warrant is reasonable and probable grounds, which must be more than mere suspicion, but is considerably less than proof beyond reasonable doubt or even proof on balance of probabilities. [13] Having found that the warrant was properly issued and that the search therefore met the standard in Charter s. 8, need not consider s. 24(2).
The defendant applied to have evidence found during a search of his premises excluded on the basis that the search warrant was invalid. Application dismissed; there was sufficient evidence to constitute reasonable and probable grounds for the issuance of the warrant. Overall the nature of the evidence was compelling with four separate and independent sources all confirming either that the defendant was selling drugs or that drugs were being sold at his residence; although individually none of the sources was of known or proven reliability, collectively they reinforced and confirmed each other; and the police conducted surveillance which corroborated the information provided by the sources.