JM had a gun. His date of birth was January 24. He was a "non-white" male, around 6'2 (he was actually 6'4). He had a tattoo of a spider on his hand. He was a drug dealer. He had previously been in possession of a loaded firearm. He went by a nickname. He had been recently driving a rental car and he lived with his surety.
These details were given by an anonymous tipster who called the police to report that JM had a gun at his house. They were all confirmed - including the presence of the gun. This latter detail was confirmed when the police executed a search warrant at around 3 am.
On appeal the court began with the requirements for a search warrant. The court noted that the "material in support of the warrant must raise a reasonable possiblity of discovering evidence of a crime" [para 6]. Moreover the court noted that where the application is based on a CI the court must ask the following:
- was the information predicting the crime compelling?
- was the source of information credible?
- was the information corroborated by the police conducting the search?
The court noted that this assessment is a "totality of circumstances" test and no one factor is determinative [para 7].
Next the court considered the standard of review and noted it to be that the reviewing court musts consider whether the issuing justice could have issued the warrant [paras 9-11].
The court then turned to the issues on appeal. First, the court considered whether the warrant could have issued. On this point the court noted that the police were not required to confirm the "very criminality alleged by the tipster" [para 20]. Here, the information was "reasonably compelling" and could have issued.
Second, the court considered the night entry. Despite the fact the accused had been arrested when the warrant was executed the court found the night entry reasonable:
Night time searches of a private residence should be carried out only in exceptional cases: See R. v. Sutherland, 2000 CanLii 17034 (ONCA). This is one of those cases [para 29].