Criminal Law

Anonymous tip case demonstrates searches must be justified

By Peter Small, AdvocateDaily.com Contributor

The Ontario Court of Appeal has reaffirmed the importance of police corroborating the information they receive through an anonymous tip by recently overturning a man’s drug convictions, says Toronto criminal lawyer John Fennel.

“With an anonymous tip, the police don't have a way of assessing one of the most important factors, which is the information's reliability,” Fennel, an associate with Hicks Adams LLP, tells AdvocateDaily.com.

“They usually don't have any information about the tipster’s credibility or reliability, which means you then have to focus on other information, which is whether the tip is compelling or corroborated.”

A three-judge appeal panel disagreed with a trial judge’s finding that police had not breached the Charter rights of a St. Thomas, Ont. man when they arrested and searched him after receiving an anonymous tip. The appeal court overturned his convictions for possession of narcotics, including cocaine, for the purpose of trafficking.

“Given that this was an anonymous tip, there was no evidence regarding the tipster’s credibility. Nor was there evidence regarding his reliability or motivation in providing the information,” the judges wrote. “There was no meaningful corroboration.”

Police started tracking the man after a Crime Stoppers tipster said he was a large-scale cocaine dealer.

Fennel, who was not involved in the case and comments generally, notes that police watched the man for some months and saw him consorting with suspected drug dealers or visiting places where drug dealing was thought to take place.

“But plenty of people inadvertently bump into drug dealers in the course of their day or are in the same place as drug dealers,” he says.

This case contrasts with a 2011 Ontario Superior Court decision in which an anonymous tip was corroborated by police, which justified their obtaining a warrant to search a home, Fennel says.

In that case, a known police informant exited the Massey, Ont., home whose occupants were suspected of selling illegal digital and telecommunications goods, he says. The informant told police that he had purchased a burned DVD and a satellite receiver there, thus corroborating some of the information provided by an anonymous tipster.

In the St. Thomas case, however, there is no corroboration, Fennel says.

Although police, acting largely on hunches, were right to believe the suspect possessed a large quantity of cocaine and marijuana, “they don’t advertise how many times they are wrong,” Fennel says.

“You and I could probably sit on a street corner and just sort of pick out who we think might have drugs and who doesn’t,” he says. “But that’s no way to go about doing this. You have to have credible evidence and make sure that it relates to future observations.”

According to a seminal 1989 Supreme Court decision, to justify a warrantless search, the information provided to police from a confidential informant must be compelling, credible and corroborated, Fennel notes.

In the St. Thomas case, despite the weaknesses of their efforts to corroborate the Crime Stoppers tip, the police and Crown nearly succeeded in convicting the defendant. It was only on appeal that the Charter breaches against unreasonable search or seizure and arbitrary detention were corrected, he says.

“This fellow went to trial and lost, and then had enough wits and resources to get an appellate lawyer to take the conviction on and have it overturned," Fennel says.

Although in this case the Charter breach was caught, it's not known how many other breaches remain undetected because they never go to trial, he says, adding that police were right to suspect the defendant, but it was a lucky guess instead of public, justifiable reasoning.

“And that's really the point,” Fennel says. “The Charter requires that the reasons the police use to stop and search someone can be explained publicly and that we can all look at and understand why they did it and see the justification.”

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