Loyalist Township man loses appeal on child pornography related charges

A Loyalist Township man’s appeal of his conviction for child pornography related offences has been denied.

On Tuesday, Feb. 14, 2023, Justices Peter D. Lauwers, Alison Harvison Young, and Jonathon C. George of the Court of Appeal of Ontario heard the case, which was appealing the conviction entered on November 20, 2020, by Justice Geoffrey J. Griffin. The convicted man, Darren Jones, was arrested on Thursday, Jan. 27, 2019, at his residence on Amherst Drive in Loyalist Township. The arrest occurred during the execution of a drug search warrant by the Lennox and Addington detachment of the Ontario Provincial Police (OPP), in connection with crystal methamphetamine and fentanyl trafficking.

“The only issue at trial was whether there [were] sufficient grounds to issue the warrant to search the appellant’s apartment, where he lived with his brother – a suspected drug trafficker and target of the search,” the judges of the court wrote in the reason for their decision, laying out the basics of the hearing.

“The trial judge dismissed the appellant’s application challenging the warrant, concluding that the issuing justice ‘could have granted the authorization,’” as per R. v. Garofoli, 1990, case law.

For his part, Jones maintained that the Information to Obtain (ITO) document – which is filed by police to a judge seeking authorization to obtain a search warrant – could not support the issuance of a warrant. He asserted that the record did not establish reasonable grounds to believe that evidence of drug trafficking would be found at his apartment.

In denying the appeal, the judges noted a number of different factors which influenced their decision.

The drug search warrant application “relied primarily on information from a confidential informant (CI), who advised police that Jones’s brother, Shaun Michael Jones, was selling both crystal meth and fentanyl.”

Indeed, police were searching the residence as part of a drug trafficking investigation; however, “while executing the warrant, the police found the appellant lying naked in his bed with a tablet computer displaying pornographic images of children,” court documents state. Jones was the only one home when police arrived to execute the warrant. His brother arrived home later as police were searching the apartment. Both Jones and his brother were arrested and charged with offences under the Controlled Drug and Substances Act (CDSA), and Jones was also charged with child pornography offences. The CDSA charges laid against Jones were later withdrawn, according to the court.

The court also outlined the information regarding the ITO filing and the followup investigation. The affiant – which refers to the person who swears under oath or in an affidavit or similar document – said he had met with the “proven” informant, who told him Darren and Shaun Michael Jones both lived in an apartment on Amherst Drive, for which he specified the address and unit number. The informant claimed that Shaun Michael sold crystal meth and that he could call or text Shaun Michael, who has meth “readily available.”

“Various people come to the apartment to buy drugs,” the informant told police, noting that Shaun Michael uses an alias, that he packages crystal meth in plastic bags, and that he, the informant, had purchased the drug from Shaun Michael personally. The officer responsible for filing the ITO also testified that:

• he was unsure if the informant had actually seen people coming to the apartment to purchase drugs
• the informant did not explicitly say where he’d purchased drugs from Shaun Michael (or if it was at the apartment)
• the informant did not specifically say that drugs were located in the apartment.

Additionally, the officer testified that the informant had provided an alias for Shaun Michael that matched one already in a police database.

Furthermore, the court heard, the affiant did a further search of the police database and found that the OPP had been dispatched to the apartment in question in early January 2019 because of a suspected fentanyl overdose. The person who had overdosed was given naloxone by his girlfriend, who was found to be in possession of three “loaded” needles, as well as spoons and plastic baggies with suspected drug residue present. It was not known whether either of the Jones brothers were in the apartment at the time. The officer also contacted the property manager of the apartment building, who confirmed the Jones brothers occupied the apartment and that management had received multiple complaints about the in-and-out traffic to their apartment. In fact, there were some “frequent guests” who had been issued trespass orders for the property, the property manager disclosed.

In terms of the CI, the ITO specified that the informant was a “carded informant” with the OPP, who was “entrenched in the drug criminal subculture.” The affiant stated that he’d been interacting with the informant for less than a year and that the informant, who does not have a criminal record, had “never provided false information or lied.” While the informant was motivated by “financial gain,” the ITO notes that the informant was aware that financial compensation was dependent on evidence being located and charges being laid.

At the initial trial, Justice Griffin acknowledged deficiencies in the ITO; however, he found that “there was compelling information by the informant that was corroborated to the extent that the apartment is occupied and rented by the [appellant and his brother]. As well, at that apartment in the time period in question, namely January of 2019, there had been a suspected drug overdose, and a person found in that apartment was in possession of suspected fentanyl residue and dime bags with white residue. Moreover, the justice of the peace, upon reading paragraph six of the ITO, would have learned that the property manager told [the affiant] ‘There [seem to be] frequent guests that… have trespassed [on] the property, and I have lots of complaints of traffic in and out. Suspected drug house if you want our opinion.’”

Citing multiple accounts of case law, the judges in the Court of Appeal found that “while the police could have done more (i.e., conduct surveillance), and while the ITO could have been more fulsome, we see no basis to interfere with the trial judge’s decision that the warrant could have been issued.”

Jones’s appeal was officially dismissed.