WINDSOR - Windsor defence lawyer Frank Miller has brought a constitutional challenge over the way Windsor police put together search warrants in drug cases, citing s. 8 of the Charter, which protects against unreasonable search or seizure.
Miller brought the motion at the onset of a drug trial in which he says the information on a warrant used to search his client’s house was extremely similar to one issued in the case of a completely different client - and through the same investigating officer - throwing the credibility of the information used in the search warrant process open to question.
Miller says he has long been skeptical of information used by Windsor police for search warrants but now he thinks there is enough “evidentiary foundation” in this case to challenge.
“I’ve been trying to find the case for a long time and now I’ve got the situation where I think I’ve got a tipster who’s clearly wrong,” he says.
The current case is against Fred Pritchard, aka “Daweedking,” charged with providing marijuana to his former local marijuana compassion club. In May 2005, police raided his home and seized 26 plants as well as grow-op equipment such as hydroponic lights. Miller said the search warrant’s information alleged Pritchard had 50 to 80 three-foot-high marijuana plants in the basement. His wife, Renee Pritchard, who was also charged.
But Miller says information for the warrant happened to be very similar to that for another client of his - one where police found 180 three-foot-high plants and 261 one-inch-high seedlings.
“They’re so out of whack,” he said. “The variance is sufficiently large to raise questions.” Miller’s contention is that no plants were seen at all. He says it’s time to challenge the police. The lawyer said it’s far from the first time he has encountered vagueness in Windsor police search-warrant applications.
“What they say is that anytime they find any drug then they put that drug down as showing [the informant’s] reliable,” he says. “It doesn’t matter whether it’s what they wanted, it doesn’t matter whether it’s what he predicted, it doesn’t matter whether it’s the quantity in the place, as long as they’ve found anything they say he’s reliable.”
Miller thinks the police should provide some background as to the informants’ past credibility. “I have never seen a police force which spells out the guy’s track record,” he says. Instead, what police say is, “’If the guy has come up with anything at all then he’s reliable,’” according to Miller.
What makes his motion “novel,” Miller adds, is that the trial judge has ordered an investigating officer to gather information to come up with just such a track record to test the informants’ credibility.
“So the judge on the review can say, ‘Wait a minute, this guy isn’t reliable.’’’
But Assistant Crown Nicole Lamphier says the informants obviously led police to the marijuana plants in question.
“Everything proved accurate except for the number of plants seen by the sources and what were seized by the officers,” she says. Despite the discrepancy in what was reported and the number of plants found “it doesn’t mean it was wrong, it just means when the warrant was issued it was a different number” suggesting some plants had been removed in the interval.
Miller rejects the generality. “What they’re saying is, ‘If this guy gives us any information that results in the seizure of any drugs regardless of how far away from the predicted seizure, that tells us that’s he’s reliable.’”
Information in search warrants is largely protected by police-informer privilege to protect the identity of informants. But Miller argues that the privilege is so well entrenched police can easily take advantage of it, cutting corners in their investigations by simply saying the informant is reliable without proving it.
“There’s a serious question in my mind as to whether the police are using the statement that the guy’s reliable to hide situations or to deal with situations where they really know the guy’s not reliable,” he says. Or, it could simply be a cover for “sloppy investigation work, or [a way] not to have to do an investigation.”
University of Toronto law professor Peter Rosenthal says the issue of police-informer privilege “arises a lot, but the courts are very strongly protective of the privilege.” A rare exception is the “innocence at stake” test where no disclosure could result in a false conviction.
But in the significant 1997 Supreme Court search warrant ruling R. v. Leipert, the court said the protection originated because of “the importance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime.”
Based on this, the importance of informants’ confidentiality arose “both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes.”
Osgoode Hall law professor James Stribopoulos, who teaches criminal procedure, says informants are essential to the criminal justice system. “As I tell my students, they’re the grease in the machinery of criminal justice,” he says.
And while there is a potential risk of abuse by police, “from an administration of justice standpoint, it’s better to run that slight risk rather than expose informants to the disclosure of their identity.” The fear, he says, is that information used by police investigations would “dry up.”
But he adds, the Ontario Court of Appeal court “has consistently emphasized the need for the police to be frank and forthright” in applying for warrants. “The obligation is to be fulsome about sharing details about the informant.”
Stribopoulos says a problem can arise when police use the term that an informant is “proven and reliable” and “that becomes the catchphrase” or “boilerplate” that “really gets transplanted from one application to the next.”
He points to the 1996 Ontario Appeal Court case R v. Hosie, where “the police officer got into trouble” for doing just that.
Said the court: “Blind reliance upon ritualistic phrases without regard to the facts of the particular case robs the judicial officer of the ability to perform this vital function in the administration of justice.” Miler is using Hosie in his argument.
“It’s coded language and the Court of Appeal tells us it’s coded language,” he says.
Stribopoulos says, “The danger that I think police get into is, because it’s easy, they’ll recycle prior applications and in the process - inadvertently, quite often - they end up not providing full and fair disclosure of the circumstances.”
But, he suggests, informants’ identities can still be protected by careful editing.
“You can provide particulars about success rates in sufficiently generic terms Â- without providing specifics - to reveal to the judge a person’s track record, without disclosing so much that anyone looking at the information would be able to tell who the informant is.”
And he says that in a situation where the nature of the case calls for the informant being identified, a judge can impose a sealing order “and ultimately when the defence seeks access to it, the identity of the information will be blacked out.”
Rosenthal also says the privilege could “encourage officers to exaggerate or otherwise misuse information that they allege came from an informant.” He suggests the Windsor case is an example where information should be strictly parsed.
“Thus, in a case where the surrounding circumstances suggest the possibility that the information is not accurate, such as where the information alleged to have been supplied by the informant bears a striking similarity to the information supplied . . . about a different and unrelated accused, the basis for the information should be carefully scrutinized.”
For Miller, the matter comes down to a fundamental. “The police can go and tell the justice of the peace anything they want to tell him. It’s all on the basis of ‘trust us.’’’ Absent protections against such a cavalier approach, he says, “in the long run we’ll have a police state.”
Stribopoulos agrees that the privilege “could be problematic in the hands of a police officer who is less than scrupulous,” with the “greatest danger” being that the information is “made up.”
He says it’s “all contingent on the police being honest.”