R. v. Herdsman, 2012 ONCJ 739

BETWEEN: HER MAJESTY THE QUEEN — AND — SEAN HERDSMAN

Ontario Court of Justice Old City Hall – Toronto

For the Crown/Respondent: E. Gilman For the Defendant/Applicant: R. A. Fedorowicz

Heard: March 23, July 3, 5, 12 and 13, August 20, September 10 and 11, October 15 and 16, November 2 and 8, 2012

REASONS FOR RULING

(Re Ss. 8 and 24(2) Charter Application)

MELVYN GREEN, J.:

A. INTRODUCTION

1Sean Herdsman, the defendant, is charged with a number of drug and firearm related offences. The charges result from seizure of these items during the course of a search warrant executed at his residence in Toronto. By way of a preliminary motion, the defendant (hereafter, the applicant), applied for a ruling that the sworn "Information to Obtain" ("ITO") tendered in support of issuance of the search warrant was legally deficient and, accordingly that the search of and seizures from his premises violated his right to privacy as protected by s. 8 of the Charter. The applicant further claims that the just and appropriate remedy for this constitutional breach is an order, pursuant to Charter s. 24(2), excluding evidence of the seizures at his trial. Such order, if granted, may well effectively terminate the Crown prosecution of the applicant.

2As in many cases involving search warrants issued in aid of drug and gun investigations, much of the critical information set out in the original ITO is attributed to confidential informants – "CI"s in common legal parlance. Consistent with its obligation to protect the identity of such sources, any information that risked identifying the CIs was redacted by the Crown before a copy of the ITO was disclosed to the defence. Conceding that the information in the resultant document was facially inadequate to support the warrant on a s. 8 review, the Crown applied to proceed by way of production of judicial summaries of the redacted portions, consistent with "step 6" in Garofoli, a matter to which I soon return.

3As the search was conducted pursuant to a presumptively lawful warrant, the burden – on the civil standard of balance of probabilities – to establish both the constitutional impropriety of the search and the appropriateness of the remedy sought rests on the applicant.

B. "STEP 6": ITS ROLE AND RELEVANCE

(a) Introduction

4An understanding of the factual underpinnings to the instant application first requires a brief review of the nature and history of the proceedings and an appreciation of the role and purpose of the "step 6" procedure.

5In its simplest and most idealized form, a Charter s. 8 review of the sufficiency of the grounds advanced in support of a search warrant involves a trial judge's assessment of that ITO placed before the issuing justice to determine whether he or she "could", not "would", have authorized the warrant sought. In practice, this exercise not infrequently involves a review of an affidavit somewhat different than the one placed before the issuing justice. On occasion the discrepancy is attributable to an amplification or correction of the record so as to remedy or remove factual errors in the original ITO. Sometimes the inconsistency between the original ITO and the version subject to a Charter s. 8 compliance assessment is a product of Crown redactions in the former so as to protect the identity of any confidential informants. And sometimes the version considered on a Charter review contains judicial summaries of Crown-redacted portions of the original ITO. The instant case reflects all three editing variants and, as a result, the evidentiary foundation for the issuing justice's sufficiency determination is materially different from the version here subject to constitutional challenge. Accordingly, the question on this application is whether the justice to whom the search warrant request was originally brought could properly have exercised his jurisdiction to issue the warrant not on the basis of the original ITO he read but, rather, on the basis of the corrected and, if found appropriate, selectively excised version that is now before me.

6The notion of judicial summaries is a relatively recent innovation in the law of review of search warrants. If, for example, the only "grounds of belief" as to the locus of targeted evidence of crime is redacted from an ITO to protect a CI's identity, a reviewing judge – absent a suitable judicial summary – would have little choice but to find a search warrant executed at that location improvidently issued and, assuming an accused has standing to challenge the warrant, in violation of his or her Charter-protected right to privacy. In contemplation of this eventuality, the Supreme Court, in R. v. Garofoli, prescribed a procedure for s. 8 reviews based on the information upon which the issuing justice actually relied while endeavouring to reconcile the legal privilege attending the identity of CIs with a defendant's right to challenge the sufficiency of the ITO. In brief, a judge on the Charter application sees the same material as the issuing justice. The defendant, however, does not. Instead, he or she is provided with judicial summaries of the redacted portions – but only where the judge determines that such summaries are sufficient for the defendant to make full answer and defence in the context not of a trial but, rather, of a preliminary application dedicated to the issue of admissibility of evidence rather than innocence or guilt.

7Code J. has described the tension between the competing principles and the resolution proposed in R. v. Garofoli in the following passages from R. v. Learning, at paras. 100-107:

The extensive editing of [the affiant's] grounds in the case at bar was driven by the fact that "Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identify", as McLachlin J. (as she then was) put it in Leipert at p. 393. The conundrum in which the police and the Crown find themselves, in cases like the one at bar, is that Debot require[s] disclosure of the informer's means of knowledge and disclosure of as much detail as possible, as well as any past history of reliability. The more that these matters are disclosed, the more likely it is that the tip will rise to the statutory and constitutional standard of reasonable and probable grounds. And yet the more these matters are disclosed, the more likely it is that the details and the means of knowledge will implicitly identify the informer. As Sharpe J.A. put it, speaking for the Ontario Court of Appeal in R. v. Omar at 255 (Ont. C.A.):

The informer had provided the police with very detailed information about where the respondent would be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would be found. The pool of people who would be privy to that precise and detailed information must necessarily be very small. The individuals in that pool are likely known to the respondent. Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer.

In the early Charter of Rights case law, when it was first held that the parties had to prove the objective existence or absence of reasonable and probable grounds on s.8 and s.9 motions, there was no apparent solution to the above conundrum. In cases where the Crown had to rely substantially on an informant's tip but where the details of the tip had to be edited to protect informant privilege, the Crown was driven to concede s.8 or s.9 violations. See: R. v. Hunter; R. v. Parmar et al.

Of course, it is always open to the police to continue their investigation and develop sufficient grounds to arrest or search that are not dependent on the informer's tip. Unfortunately, this is not a realistic option in [many] cases …

In cases like the one at bar, where the police have reasonable and probable grounds to arrest or search, based substantially on an informer's tip, and where they are compelled to act quickly in the public interest, there must be a rational solution to the conflict that arises between the demands of Debot and the dictates of Leipert. That solution is found in the so-called "step six" in Garofoli, supra at p. 195 where Sopinka J. stated:

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

"Step six" in Garofoli was an innovation. It had not been suggested in the earlier case law and it appears to have been largely ignored in subsequent cases.

… There is little or no jurisprudence, interpreting and applying "step six", and it is undoubtedly controversial. The Court would end up deciding the … issue on the basis of evidence that the defence had never seen or tested, other than through the vehicle of a judicial summary. This raises the spectre of secret trials and violations of "the right to meet the case". See: Charkaoui, at pp. 623-7.

On the other hand, the Supreme Court of Canada has recently suggested that these "full answer and defence" rights are more attenuated on Charter admissibility hearings than they are at the trial on the merits, where "the guilt or innocence of the accused is at stake". See: R. v. Pires and Lising at 463-6 (S.C.C.). The resolution of these conflicting values will likely depend upon how useful the judicial summary turns out to be. If it proves to be an adequate substitute for full disclosure, the defence will not have been prejudiced. We need to develop experience with the use of judicial summaries in actual cases in order to determine whether Sopinka J.'s innovative "step six" in Garofoli is a workable solution. …

It is unfortunate that "step six" in Garofoli is the only legal mechanism available, to resolve the conflict between the competing demands of Debot and Leipert, and yet it is simply not being tried or tested. The result is that we encourage [a police officer] to carefully prepare detailed and thorough grounds to arrest and search, that will meet the Debot criteria, and then we reward him with a declaration that he violated … the Charter because Leipert prevents the court from relying on those grounds. This does not seem right.

8Justice Code's reflections on what he clearly viewed as the under-utilization of the "step 6" procedure were very recently endorsed by two justices of the Court of Appeal in their concurring opinion in R. v. Rocha, 2012 ONCA 707. Juriansz J.A., addressing the "dilemma" on behalf of himself and O'Connor A.C.J.O., commented as follows, at paras. 56-59:

It is difficult to understand why the Crown does not request the court to employ "step six" of Garofoli more frequently. There … can be no advantage to the Crown in defending the issuance of a warrant on less than all the information that supports it. …

Perhaps because of such concerns, the Supreme Court of Canada crafted the last element of the "step six" procedure. …

The Crown in this case did not request the trial judge to consider [pursuant to "step 6"] the excised [i.e., Crown redacted] information. And this court has found there was insufficient information in the ITO to support the issuance of the warrant to search the respondent's home, without considering all the information upon which the warrant was issued in the first place.

I have added these concurring reasons to highlight the dilemma raised in such cases and to encourage attention being paid to it in future cases. I appreciate there may be practical questions about the procedure to be followed in applying step 6 of Garofoli and about the content of the judicial summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve those questions.

As to "practical questions about the procedure", I add only that "step 6" provides a less than perfect resolution of the conflicting interests where, as here, a trial judge crafting judicial summaries can only speculate about the challenges an applicant may contemplate bringing to the veracity or significance of the "facts" set out in a redacted ITO or those that may emerge following the summarization process.

9Unlike the situation in Learning and Rocha (although perhaps in response to the prodding of the former), the Crown has here proceeded by way of the "step 6" mechanism. Proposed judicial summaries of redacted portions of the ITO were tendered by Crown counsel for judicial consideration, revised and ultimately endorsed by me, and then distributed to the defence. Defence disclosure applications premised on newly unredacted portions of the ITO were, following some judicial mediation, ultimately honoured by the Crown. A defence application to cross-examine the affiant was withdrawn before I was asked to rule on the motion. The Crown did not seek to call the affiant or otherwise substantively amplify the record, although both parties agreed that certain uncontroversial or relatively inconsequential inaccuracies be corrected for purposes of review. Further, the Crown acknowledged several more grave factual errors and/or misstatements in the ITO, in particular that a person described as "Confidential Source #2" was, in fact and law, not a confidential informant; as a result, the contents of the earlier redacted paragraphs referable to this woman were disclosed to the defence. I shall revisit these latter incongruities and their significance in due course.

10In the end, there are three versions of the ITO before me on the applicant's challenge to the constitutional propriety of the search warrant. The first (which has been filed as a sealed exhibit) is the original, unaltered ITO upon which the issuing justice relied. The second is the redacted version provided to the defence by way of disclosure, as supplemented by judicial summaries of the redacted portions and the minor corrections on which counsel agree. The third is the original ITO (as consensually corrected) but with the full text of the redactions for which the defence has only judicial summaries. Simplified, only Crown counsel and I have access to the full text of the unedited, original ITO. And it is this document, less any appropriate factual amendments and excisions, upon which I am to determine the adequacy of the grounds to issue the constitutionally impugned search warrant. (See, R. v. Sahid, at paras. 28-32.)

11As should be clear, it is only the second version (that afforded the defence) that I can summarize in any detail in these reasons by virtue of the rule in Leipert. As a result, to the degree that I significantly rely on undisclosed portions of the original ITO in reaching my decision on this application, no one other than a court to which an appeal might be taken will ever be in a position to independently assess its propriety. This, of course, raises inevitable concerns about both public access to and public accountability of the judicial process.

12Relatedly, I note that defence counsel several times expressed frustration with the review process and protested his inability to mount an informed challenge to the contents of some seemingly critical paragraphs in the ITO upon which the Crown appeared to rely (if, necessarily, by way of cryptic allusion only) because of his lack of access to other than succinct judicial summaries of those portions.

C. EVIDENCE

(a) Introduction

13The challenged search warrant was issued on June 24, 2011 and executed at the applicant's home at 91 Howland, the authorized "place" of the search, the same day. The warrant was sought and authorized solely with respect to the search for and seizure of a firearm and ammunition. As a result of various seizures made during the execution of the warrant, the applicant was arrested and charged with a number of offences related to the possession of a firearm and ammunition, the possession of drugs (heroin, cocaine and marihuana) for the purpose of trafficking, and the possession of proceeds of crime of a value under $5,000. He has been in custody ever since his arrest.

14To be clear, the applicant's primary claim is that, factually corrected and shorn of misstatements, no "probable cause" is set out in the ITO to justify the issuance of the impugned warrant. A secondary argument, that of police misconduct amounting to an abuse of process, is founded on a claim of deliberate effort to mislead the issuing justice that, it is alleged, may be inferred from the nature and context of critical misstatements and/or omissions in the ITO. No challenge is taken to the manner of search or the constitutional validity of the governing legislation.

(b) The General Architecture of the ITO

15The ITO in this case is relatively brief. Stripped of its boilerplate recitals and here-irrelevant accompanying applications for ancillary orders (such as authority for "dynamic entry" and "sealing"), the ITO consists of less than seven pages of sometimes redundant documentation, all typed in a large font with line-spacing set at 1.5. As a general proposition, I note that brevity in the drafting of ITOs, while consistently encouraged (see, for example, R. v. Araujo, at para. 46), is no virtue if its cost is an inadequate, inaccurate or misleading rendering of the grounds necessary to justify the issuance of a search warrant.

16Tender of the ITO was accompanied by a second search warrant application focused on the same firearm but directed at the applicant's Volkswagen rather than his home. A third warrant was issued the next day with respect to a storage locker with which the applicant was said to be associated. To my knowledge, no prohibited items or other evidence was seized at either of these secondary locations and the warrants authorizing these searches are not directly the subject of any Charter motion before me.

17The organization of the ITO follows a common template. The "informant" (to whom I have been referring as the "affiant" so as to distinguish him from any risk of textual confusion with a confidential informant) is a member of the Toronto Police Service's "Guns and Gangs Task Force". He lists and briefly describes a number of police databases available to him under the rubric of "Investigative Sources". Two "Investigating Officers" in the same Task Force are then introduced by name and general duties. Under the heading "Overview of the Offence", the affiant then sets out, in point form, 18 items of information disclosed to him by a "confidential source" with whom he first met the day before the ITO was advanced and the warrant issued. Some matters bearing on this informant's reliability are addressed in the next section, "Confidential Source #1". Two paragraphs describing information attributed to "Confidential Source #2" follow. The next chapter, titled "Investigative Checks", details the results of a series police database inquiries into such matters as the applicant's criminal history, driver's licence status, vehicle ownership and physical appearance. An "Observations" section reports some rudimentary effort made by the police to confirm the applicant's residence and his presence there. Certain summary assertions then appear under the rubric "Grounds to Believe", along with seven items of confidential source-provided information that the affiant avers have been "corroborated". Standard-form recitals for the ancillary orders sought occupy the last five pages of the ITO. Other than the applicant's name and the targeted address, nothing in these final pages is case-specific or in any way modifies the purported basis for probable cause to issue the warrant.

(c) The Significant Contents of the ITO, as Disclosed, Judicially Summarized and Corrected

(i) "Confidential Source #1"

18Some "[further detailed] consideration" was exchanged with the first confidential informant (hereafter, "CI#1") in return for the information s/he provided. S/he was advised of potential criminal consequences for lying to the police or falsely accusing someone of a crime. Other than the assertion that CI#1 "has never been convicted of any offences relating to lying to Police like obstruct", his/her criminal antecedents, if any, are not set out. As judicially summarized, CI#1's "claim to have provided information to the police in the past is unconfirmed".

19The information conveyed by CI#1, as judicially summarized where necessary, includes the following:

• The applicant is a heroin dealer. He usually has more than an ounce in his possession and deals the drug at specified prices and in specified weights in an identified Toronto neighbourhood at certain times of day.

• The approximate location of the applicant's residence.

• The applicant drives a "grey/silver 4-door Volkswagen Golf".

• An alternative location associated with the applicant.

• The applicant has had possession of a handgun for at least a year, the general location at which it is stored, and CI#1's source of some of this information and its currency.

• A physical aspect of the applicant's "living arrangement".

• A physical description of the applicant, including his age.

• An otherwise undisclosed or summarized "detail" of the applicant (which, as later asserted, the police were unable to confirm).

• The applicant "is presently wanted by the police for uttering threats on his previous girlfriend".

• A physical description of the applicant (coupled with CI#1's correct identification of the applicant from a photo shown to him by the police).

(ii) "Confidential Source #2"

20Neither of the two paragraphs (numbered 21 and 22 for purposes of this hearing) devoted to "Confidential Source #2" (hereafter, "CI#2") were disclosed to the defence until the eve of trial. As then fully unredacted, they report that an unidentified woman advised the police on April 17, 2011 that the applicant threatened to kill her. She was "scared for her safety" because "two weeks prior" he had attended at CI#2's address and showed her a loaded gun in the glove compartment of his car, a 2003 silver Volkswagen Golf for which a licence plate number is provided. CI#2 described the gun as black and like "a police gun".

21In paragraph 28 of the ITO, the affiant, under the heading "Investigative Checks", reports that his police database searches disclosed that the applicant was a suspect "in relation to a Threatening Death x2, firearms related occurrence [report]" dated April 18, 2011. Much of the gun-related details of this "occurrence" are verbatim with those provided in paragraphs 21 and 22 and there attributed to "Confidential Source #2". However, unlike the earlier passages (where the events are separated by two weeks), no temporal division is drawn between the reported threats and the alleged sighting of a firearm. Further, there is no information provided as to the "x2" (the earlier paragraphs speaking only of a single threat rather than, as implied in paragraph 28, a second threatening event or victim) and there is no suggestion, unlike earlier, that the complainant was "scared for her safety". No further information as to the complainant, her relationship with the applicant or any narrative or surrounding circumstances of the alleged threatening incident is set out in the ITO.

22One thing that is clear from the evidence before me and, as earlier noted, the concession of Crown counsel, is that there is no basis to characterize the woman until here identified as CI#2 as a "confidential source". Her full name has now been disclosed and I henceforth refer to her as "Lisa".

23Further, as it transpires, the affiant, at the time he drafted the ITO, knew or had immediate access to much more potentially relevant information about Lisa and her relationship with the applicant than he set out. That undisclosed information speaks to Lisa's criminal record, a protracted relationship of reciprocal animus with the applicant and a history of cross-charges. It also makes clear that Lisa is not and has never been the applicant's "girlfriend". As revealed through disclosure afforded the defence and as properly conceded by Crown counsel, the information directly before the affiant at the time he drafted the ITO, and that no more than a computer click removed, includes the following:

• Lisa had been in a domestic relationship with a woman, Tove, for four years.

• The applicant had previously been married to Tove for ten years.

• Lisa was charged with assaulting the applicant with a weapon in December 2007 immediately following court proceedings involving the applicant and his former wife, Tove. Almost three years later, in October 2010, she was found guilty and conditionally discharged, including a probation condition that prohibited her from being within 100m of the applicant.

• Earlier, in 2008, Lisa was charged with two counts of assault allegedly perpetrated on two cab drivers. The charges were withdrawn after Lisa entered into a common law peace bond. Whether or not there was any admission of liability, Lisa's entry into that recognizance reflects her acknowledgement that her conduct grounded the reasonable apprehension of others.

• The police responded to a radio call on April 16, 2011. Lisa and Tove were having a verbal argument that ended only when Lisa retired to a local bar. Tove was no longer at their shared apartment when Lisa returned at 4:00am the next day. Later that day or the next, Lisa contacted the police and alleged that the applicant called and threatened her.

Again, none of this bulleted information respecting Lisa and nature of her association with the applicant is included in the ITO, despite the affiant at one point indicating that he "located the occurrence [report] related to" the April 17, 2011 incident.

(iii) The "Investigative Checks"

24The reported results of the affiant's police database inquiries include the following:

• The applicant is subject to two firearms prohibitions.

• He is not licensed to possess firearms.

• The applicant's driver's licence is under suspension.

• The Volkswagen described by CI#1 and Lisa/CI#2 is registered to the applicant.

• A search of the applicant's name generated "114 returns". The nature of the "returns" (or even whether any involve allegations of criminal conduct by the applicant) is not set out. The only criminality here described is in reference to the April 17, 2011 threatening occurrence that substantially duplicates, as I have already indicated, the information elsewhere attributed to Lisa/CI#2. A warrant in the first instance was issued for the applicant's arrest in regard to that incident.

• The applicant's physical description (which is similar to that provided by CI#1) and date of birth.

• The applicant "has a lengthy criminal record since 1992 … for several different criminal offences ranging from property crimes, assault, fail to comply and drug related offences". No further details are provided. There is no mention of any crimes involving a weapon (let alone a firearm) or offences of violence other than "assault". Counsel now agree, by way of factual correction, that the applicant's last conviction was in 2007 and that his record reflects only a single conviction for a drug offence (rather than, as asserted in the ITO, multiple "offence s " of this class).

(iv) "Observations"

25CI#1 pointed out the applicant's home to the affiant during a police-escorted drive-by. The Volkswagen linked to the applicant was seen parked in the driveway of the house and the applicant himself was observed in the backyard an hour later. The house was under police surveillance at the time the ITO was presented to the issuing justice.

(v) "Grounds to Believe"

26The affiant, exercising some editorial licence, asserts the co-confirmatory value of the two CIs' accounts of the firearm at issue. He also, as judicially summarized, asserts a personal link between CI#1 and the applicant. (This assertion, even in its unedited form, is purely conclusory; it finds no evidentiary purchase in the statements of fact set out in the original or subsequently edited ITO.) The affiant also avers the Lisa/CI#2 "knows [the applicant] intimately". (Again, no foundation for this assertion appears in the information placed before the issuing justice, nor, in any event, does the affiant explain the nature of the relationship or the apparent hostility that characterizes their "intimacy".)

27An inventory of "information provided" and said to have been "corroborated" follows:

• A concurrence (if somewhat generic, I add) of CI#1's and CI#2's gun descriptions.

• Their concurrence respecting the applicant owning a Volkswagen.

• Their concurrence respecting the physical description of the applicant.

• The applicant's history of "drug related offence s ".

• The applicant is "wanted" on threatening charges.

• CI#1 identified a police photograph of the applicant.

• The Volkswagen said to be owned by the applicant was seen parked in the driveway of the property CI#1 identified as the applicant's residence.

• The applicant was observed in the backyard of that same residence.

D. ANALYSIS

(a) Introduction

28The applicant asserts, in essence, that the search of his house violated his Charter protected right to privacy because the warrant authorizing that search was, for two reasons, constitutionally defective. First, the affiant's misstatements and omissions amounted to deliberate misrepresentations intended to deceive the issuing justice and, thus, constitute an abuse of the court's process. Second, and in any event, the factual assertions in the ITO, once corrected and/or excised where appropriate, fail to afford probable cause for the warrant's issue. In either event, to be clear, any "fault" is attributed not to the issuing justice but, rather, to the affiant who either endeavoured to mislead the justice or, alternatively, failed to fully and frankly set out that information which, considered in its totality, falls short of those grounds sufficient to merit judicial endorsement.

29I address each of these claims in short order. I then consider an alternative basis for questioning the validity of the warrant. Given my determination of these matters, I then turn to the issue of remedy.

(b) The Validity of the Search Warrant: Assessing the Impact of the Errors and Omissions

(i) The Law Governing s. 8 Sufficiency Reviews of ITOs

30A Charter-based challenge to an ITO issued in support of a search warrant is generally premised on a claim of insufficient probable cause. Such review is not a de novo hearing or an opportunity for a reviewing court to replace the issuing justice's opinion with its own. Rather, the test on a sufficiency review is whether the issuing justice "could" – not "would" – have issued the warrant on the basis of the sworn ITO (or, as here, the corrected or otherwise edited ITO) put before him or her. As said by the Supreme Court in R. v. Morelli, at para. 40:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

See, also, R. v. Araujo, at para. 54, R. v. Garofoli, at 188, and R. v. Grant, at 195.

(ii) The Claim of Abuse of Process

31An affiant's misstatements and omissions are typically addressed by way of amplification or excision and, then, a sufficiency assessment predicated on the amended ITO. However, there are occasions when the misstatements and omissions in an ITO, as put by the Court of Appeal in R. v. Vivar, are "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed". (See, also, R. v. Morris, R. v. Araujo, at para. 54, R. v. Colbourne, R. v. Kesselring, at paras. 30-32, R. v. Ahmad at paras. 13-16, and R. v. McElroy, at para. 30.)

32While there are undoubtedly misstatements and material omissions in the ITO at issue, I do not view them as part of deliberate effort to defraud the issuing justice or otherwise consciously subvert the course of justice. Defence counsel ultimately withdrew his application to cross-examine the affiant. If pursued and granted, that inquiry may have afforded him an opportunity to establish the intentionality or deceit or other species of egregious state misconduct necessary to ground an abuse of process in this context. I am not prepared, on the record before me, to infer that genus or degree of bad faith on the part of the affiant. The misrepresentations, as so characterized by the applicant, engage abuse of process considerations but, in my view, are better addressed in the context of a global sufficiency assessment of the ITO.

(iii) The Sufficiency Assessment

a. Introduction

33ITOs are often drafted in pressing circumstances. Regrettably, errors, misstatements and omissions are not uncommon. They can often be corrected through amplification on review without prejudicing either the defendant or the existence of probable cause. Where the latter is implicated, the question for the reviewing court is whether the issuing justice could have granted the search warrant had the justice known the errors and omissions – that is, the "true facts" – at the time. On some occasions the nature of a mistake (to use a neutral word) is such as to require its deletion from the ITO under s. 8 review. The reviewing court's task is then to determine whether the issuing justice could have issued the warrant on the basis of what remains. I address the character of the identified errors and omissions, their proper legal treatment and the appropriate consequences in due course. I first turn to governing law.

b. An Affiant's Legal Obligations

34An analysis of the misstatements and omission in the instant case requires an appreciation of an affiant's obligations on, as here, an ex parte application for judicial authorization to conduct what otherwise amounts to an unjustifiable infringement of an individual's constitutionally protected interests. In U.S.A. v. Friedland, at paras. 26-27, Sharpe J. (as he then was) described and explained the heavy burden universally imposed on those pursuing ex parte applications – even in circumstances where constitutional rights are not in jeopardy:

The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party. As a British Columbia judge noted recently:

There is no situation more fraught with potential injustice and abuse of the Court's powers than an application for an ex parte injunction.

(Watson v. Slavik, para. 10.)

For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side. [Emphasis added.]

35The Supreme Court expressly endorsed these passages from Friedland in R. v. Araujo, at para. 46, in the context, as here, of a review of the law governing the "kind of affidavit" upon which the police may rely in seeking judicial authorization for an otherwise unconstitutional infringement of privacy rights. In the Court's own words (at paras. 46 and 47):

The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts". …

A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. … Counsel and police officers submitting materials to obtain [search] authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. (Italics in original. Underlining added.)

(See, also, R. v. Morelli, at para. 102.) The legal obligations articulated in Araujo were settled long before that decision. In R. v. Hosie, at 398, the Court of Appeal strongly cautioned that even careless drafting of an ITO that risked misleading consequences "strikes at the core of the administration of justice". In R. v. Sutherland, at para. 30, the same Court held that, "[t]he reasons in Hosie called for a renewed sense of responsibility by officers seeking search warrants". In my view, that onerous responsibility, which I soon more closely examine, was not honoured in this case.

36Some of the identified errors in the ITO can be readily corrected without, on their own, jeopardizing the existence of probable cause. Counsel agree, for example, that information about the applicant's criminal record should be amended to respect the fact that it terminates in 2007 and that he had only one prior drug conviction. The affiant had this information before him and no explanation has been advanced for his not having tendered a more accurate and balanced recital – nor does one naturally present itself other, of course, than to exaggerate the potential confirmatory value of the applicant's record or to invite an adverse inference of continuing or current criminality. (The affiant's reference to "114 returns" following a police database check of the applicant is equally troubling. In R. v. Campbell, at para. 74, Doherty J.A. observed that, unlike a criminal record, a mere "list of [the accused's] other 'contacts' with the police had no probative value" and, I infer, ought therefore to have been excised from the ITO subject to review as irrelevant and unfairly prejudicial. Although writing in dissent, Justice Doherty's opinion is not challenged by the majority on this point.) Indeed, on repeated readings I am increasingly left with the impression that the tenor of the ITO slides into advocacy when what is legally required is an impartial presentation of the relevant information collected by or reasonably available to the affiant. It cannot be said too frequently that in properly and fairly exercising his jurisdiction to grant a warrant, an issuing justice is entirely at the mercy of the information put before him or her by way of an ITO. R. v. Hosie, offers one of many reminders of this fundamental proposition: "The justice can only perform that function if provided with accurate and candid information."

37CI#1's characterization of the status of the complainant in the threatening allegations also warrants comment. CI#1 is said to refer to her as the applicant's "previous girlfriend". The parties now understand the complainant to be Lisa – not the applicant's girlfriend but, instead, his former wife's girlfriend. What is of some significance in this context is not that CI#1 misstated or simply misunderstood the complexities of the applicant's personal relationships but, rather, that the affiant – who almost certainly knew or ought to have known the true circumstances through his review of the related occurrence report – failed to advise the issuing justice of CI#1's error. In R. v. Kesselring, at para. 10, for example, the Court of Appeal found it "important" in assessing the legal effect of a number of inaccuracies attributed to an informant that "the police officer who swore the information used to obtain the search warrant specifically pointed out these misstatements in the information". The justice who issued the ITO before me did not have the benefit of a similar correction.

38The affiant's failure to alert the same justice as to CI#1's criminal record, if any, is of the same ilk: a grossly negligent, at best, presentation of almost certainly known information that potentially impacts on the issuing justice's assessment of the confidential informant's reliability. (I here draw the inference, borne of judicial experience and common sense, that the affiant would have welcomed the opportunity to assert that CI#1 had absolutely no criminal record if this was in fact the true state of his affairs.) Given that a sealing order application accompanied that requesting authority to search, there seems no reason for the affiant to not, at minimum, advise the issuing justice whether CI#1 had convictions for any offences of dishonesty beyond merely those "relating to lying to Police". As Justice Finlayson was famously wont to say, this is "too clever by half".

39The passages in the ITO that attract the most critical scrutiny are obviously those dealing with Lisa/CI#2 and the information pertaining to her allegations of the applicant's threatening behaviour and his possession of a gun, and most importantly, the manner in which this information was couched by the affiant. The ultimate test remains the sufficiency of the original, as now amended, affidavit. However, as put by the Court of Appeal in R. v. Nguyen, at para. 23:

Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant.

40Before determining the appropriate legal treatment of the Lisa/CI#2 passages it is worth considering the compass of tolerance for erroneous statements and omissions in an ITO or wiretap authorization. Crown counsel's position is that affiants are only human, that they work under considerable pressure, and that meeting the urgent risk to public safety presented by an investigatory tandem, as here, of guns and drugs inevitably affords fertile ground for the occurrence of mistakes. Affiants are neither legislative drafters nor professional authors and their work product should not be assessed by the standards of either. This point is a fair one that has been repeated by a variety of judicial authorities. (See, by way of example only, R. v. Sanchez, at para. 20.1; R. v. Dhillon, at para. 78.) It is also settled, however, that affiants' performance of their legal obligations is subject to those judicially enforceable standards that are directly relevant to their task. Nor would it be accurate to suggest that the affiant was unfamiliar with such matters. He had accumulated 12 years of police experience by 2011 and, even more importantly, his self-described duties included the "preparation and execution of search warrants". Professional naivety here affords no excuse for any drafting errors.

41In R. v. Genest, at 406, one of the major building blocks in the evolution of s. 8 rights, a unanimous Supreme Court held:

While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be aware of those requirements that the courts have held to be essential for the validity of a warrant.

Much more recently, in R. v. Morelli, at para. 58, the same Court forcefully expanded on an affiant's duties:

In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. [Italics in original. Underscoring added.]

It is against this standard that the affiant's drafting of the ITO must be measured.

42Crown counsel's reliance on the urgency attending police investigations involving guns and drugs also merits comment. The plague of gun-related crimes in Toronto is a notorious fact. No civically minded or even modestly responsible person can gainsay the lethal danger posed by firearms and the priority rightly assigned to the apprehension of those who unlawfully possess them. However, the statutory and constitutional norms for search warrants targeting guns are the same as those that obtain for any prohibited item or evidence of crime. There are, in short, no "special rules" for gun searches. Further, the evidence before me, both by way of the ITO and that led on this hearing, does not suggest any particularly elevated need for expediency, and certainly none that persuasively diminishes or detracts from conventional search warrant requirements or excuses procedural shortcuts.

43For example, I note that unlike some other ITOs I have had occasion to review, the affiant does not assert any urgency, nor is there any information suggesting that the firearm at issue is about to be removed from the target premises or utilized in the commission of an offence, let alone an imminent one. Information alleging the applicant was in possession of a loaded gun had been conveyed to the police by Lisa more than two months earlier, yet no effort appears to have been made to contact her in the interim to determine the applicant's address, despite the affiant's averment that she "knows [the applicant] intimately". Further, any assertion of heightened urgency is belied by the circumstances that prevailed at the very time the ITO was tendered to the issuing justice: the applicant's residence was under police surveillance; he had just been seen in the backyard; he could (and almost certainly would) have been immediately arrested on the outstanding warrant had he left his home; and there was no information – either from CI#1 or any other source – to suggest that anyone other than the applicant resided in the house, nor does the affiant even speculate otherwise. In this situation, it is difficult to infer any urgency that would compromise either the affiant's opportunity or his "obligation", as put by Hill J. in Re Criminal Code, at para. 11, "to provide a fair, balanced and accurate narrative of the underlying factual circumstances" – particularly when the affiant himself advances neither claim. As simply put by the Court of Appeal in R. v. Hosie, at 398: "There was no urgency nor any need to act precipitously to prevent the loss of evidence".

c. The Law of Amplification

44"Amplification" is a term of art in the law of search warrant review. It is also a word of somewhat uncertain application. On its face, "amplification" refers to a process of expansion or supplementation – a review mechanism whereby misstatements in an ITO are corrected and omissions filled so as to reflect the information known to the affiant at the time search warrant application was tendered. As a procedure for determining the sufficiency of an ITO, "amplification", in this sense, is distinct from that of "excision" which involves the deletion or expungement from the ITO of passages that offend the obligation to accurately detail material facts or may otherwise mislead an issuing justice. There are are at least two risks of confusion in reading the relevant jurisprudence respecting "amplification". The first is a product of the term sometimes being used to describe both editing processes. The second concern arises from the still vexing question of when factual mistakes may be properly corrected as opposed to being cleanly severed from the ITO before a reviewing court determines whether the issuing justice could have granted the authorization sought on the basis of the amended iteration.

45In R. v. Garofoli, at 188, the Supreme Court held that:

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 a 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.]

46The Supreme Court returned to the meaning of the phrase "as amplified on the review" in R. v. Araujo, and, in particular, the question, as framed at para. 55, of "which evidence the reviewing judge should consider in a situation where some of the original information was erroneous and there is an attempt to amplify it on review". The Court's answer, at paras. 56-59, follows:

As R. v. Morris, at p. 556 notes, only erroneous information "needs to be excluded from consideration and that material, provided it is not part of a deliberate attempt to mislead the Justice of the Peace, may be amplified by evidence on review showing the true facts".

… Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.

Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.

When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: [citations omitted]. The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests (Hunter v. Southam Inc., at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds … but had, in good faith, made some minor, technical error in the drafting of their affidavit material. [Emphasis added.]

47That "the reviewing court must exclude erroneous information" and that the remedy of correction is restricted solely to "minor" errors made in "good faith" was re affirmed in R. v. Morelli, at para. 41. Yet, some uncertainties remain. The Court's language inevitably begs the question of the meaning of "minor" and "technical". And there are many shades of grey (to use a now debased metaphor) between "simple error and … a deliberate attempt to mislead the authorizing judge". While Araujo clearly emboldens reviewing judges to consider amplifying innocent or inadvertent errors of relatively slight consequence, the Court of Appeal continues to conduct and approve excision in appropriate circumstances, including instances of factual misstatements. (See, for example, R. v. Sutherland, at para. 7 and 10; R. v. Do; R. v. Morey; R. v. Vivar; and R. v. Campbell, at paras. 38 and 44.) And as emphasized in R. v. Morelli, at para 42:

It is important to reiterate the limited scope of amplification evidence … . Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59). [Emphasis added.]

d. Applying the Law of Amplification

48Again, the ITO passages that are most contentious are those two paragraphs attributed to "Confidential Source #2" (paragraphs 21 and 22) and that (paragraph 28) detailing the threatening occurrence report dated April 18, 2011. Given the evidence led on this application, it is now understood that all three paragraphs emanate from Lisa's single report to the police. The defence urges that all three be excised from the ITO before I apply the test for sufficiency. The Crown's salvage effort rests on two arguments. The first is that all three paragraphs can be amplified to conform to the "true facts" now known about Lisa and the nature of her relationship with the applicant. The second and more forcefully advanced argument is that even if paragraphs 21 and 22 are jettisoned, the information contained in paragraph 28 is accurately sourced and, when properly amplified, both buttresses the reliability of CI#1 and, through the correspondence of the two independent gun accounts, renders this critical detail adequately compelling to satisfy the related Debot criterion. Put otherwise: while amplification of the record may have negatively impacted on Lisa's credibility and reliability, the issuing justice "could" still have authorized the warrant sought by the affiant.

49I can see no alternative but to excise paragraphs 21 and 22 from the ITO. "Confidential Source #2" was not a "confidential source" or informant. The affiant's sworn assertion that CI#2 was a confidential informer is patently improper if not an abuse of the associated privilege. If there was some reason to anonymize CI#2 or characterize her as "confidential informant" it was never shared with the issuing justice. This is not a "simple", "minor" or "technical" error. The claim that CI#2 is a "confidential source" is not an act of inadvertence. I can only infer that it is the product of conscious contrivance by the affiant. It is not merely inaccurate or erroneous; it is a deliberate misrepresentation. Nor is any information afforded with respect to the reliability or credibility of CI#2. These two paragraphs must be excluded from that text of the ITO ultimately subject to my sufficiency assessment.

50The remaining amplification inquiry focuses on paragraph 28, containing a brief summary of the occurrence report respecting the April 2011 threatening allegation and the sighting of a gun in the glove compartment of the applicant's car. As earlier noted, much – but not all – of this paragraph duplicates the information attributed to CI#2 in paragraphs 21 and 22. Can it properly be amplified rather than excised? Not, in my view, in the circumstances of this case. Disingenuousness cannot be condoned in an application for judicial authorization to infringe otherwise constitutionally protected rights. Even presuming good faith, "[t]he relevant question", as said by the Supreme Court in Morelli, at para. 59, "is whether the ITO was misleading, not whether it was intentionally misleading" (emphasis in original). That question is affirmatively answered in this case.

51Paragraph 28 is inextricably intertwined with the information attributed to "confidential source #2" in paragraphs 21 and 22 and thus tainted by the same fundamental misrepresentation. The structure of the ITO sows confusion as to whether Lisa, as we now know her, was a confidential informant or an ordinary complainant disguised as one. Unlike paragraphs 21 and 22, paragraph 28, on my reading, leaves the factually incorrect impression that a firearm formed part of the threatening occurrence. It also and inevitably invites the false inference that Lisa/CI#2 is an independent reporter with no reason other than her own victimization to do other than tell the truth. Despite the affiant's awareness of materially relevant facts in this regard, absolutely no information bearing on Lisa's reliability or motives is presented in paragraph 28, or elsewhere in the ITO.

52Further, the material omissions that impact on a judicial officer's assessment of paragraph 28 are hardly "simple", "minor" or "technical". They are matters of substance that go directly to the creditworthiness of Lisa and the allegations attributed to her. The omitted information was known or immediately accessible to the affiant. That information speaks to an historical antipathy between the Lisa and the applicant, Lisa's conflicts with the criminal law, her finding of guilt respecting a prior assault on the applicant, and the curious coincidence of the timing of her April 2011 allegation with the disappearance of her lover, the applicant's former wife. The "true facts" cannot here be accommodated by minor corrections or the interstitial insertion of an overlooked detail. Unlike, for example, a case like R. v. Plant, their proper incorporation would require an extensive reconstruction of the ITO.

53More instructive as to the "limited scope of amplification evidence" is the case of R. v. Morelli, at paras. 73 and 74. Fish J., writing for the majority, notes that "there is virtually nothing to describe, let alone establish, the expertise of the [two] officers to whom" is credited opinion evidence in an ITO as to the propensities of a certain class of offenders. Significantly, he then holds that, "[t]he failure to provide evidence of the officers' expertise does not seem to be a mere 'minor, technical error' that, in light of Araujo, could be corrected with evidence [of their expertise] adduced at the [Charter] voir dire". Nor, in my view, does the amplification evidence urged by the Crown in the case before me so qualify. As said by the Supreme Court in an earlier cited passage from Araujo, at para. 59, "amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham".

54The omissions referable to Lisa's criminal record and her historical relationship with the applicant constitute significant departures from the appropriate standard of care imposed on all ex parte affiants. The inclusion of this information may well have formed a critical component of the totality of circumstances an issuing justice is obliged to consider. The affiant's exclusion of this information effectively arrogates to the police the fully informed exercise of that discretion exclusively assigned to a judicial officer: Hunter v. Southam.

55An affiant not only need be full and frank but, imperatively, candid, transparent and free of guile or strategy. ITO drafting inevitably involves some "picking and choosing" owing to the morass of information that may come to an affiant's attention. In selecting the information to include in the ITO an affiant cannot omit or camouflage material facts and, in particular, those that impact on the reliability of an informant or qualify the veracity of material allegations. The affiant here fell woefully short of this cardinal standard. As said by Cromwell J.A. (as he then was) in R. v. Morris, at 551:

The nature of the process demands candour on the part of the police. They are seeking to justify a significant intrusion into an individual's privacy. This is especially so when it is proposed [as in in the instant case] to search a dwelling house which has long been recognized as the individual's most private place. The requirement of candour is not difficult to understand; there is nothing technical about it. The person providing the information to the justice must simply ask him or herself the following questions: "Have I got this right? Have I correctly set out what I've done, what I've seen, what I've been told, in a manner that does not give a false impression?": see R. v. Dellapenna per Southin J.A. at para 37.

The affiant here either failed to ask himself these fundamental questions or disregarded his obligation to answer them in a candid, materially complete and straightforward fashion.

56In the result, paragraph 28, like paragraphs 21 and 22, must be excised from the amended text of the ITO that I consider for purposes of determining whether the issuing justice, based on the totality of that affidavit, "could" have issued the search warrant here subject to Charter challenge.

e. Determining Sufficiency on the Basis of the Edited ITO

57My assessment of the sufficiency of the ITO is governed by the criteria developed in R. v. Debot, as applied to the totality of circumstances set out in the affidavit that is now amplified by the various aforementioned corrections and abbreviated by the excision of any reference to or reliance on assertions attributed to Lisa/CI#2 (in particular, although not exclusively, paragraphs 21, 22 and 28). These criteria, as enumerated and explained by Wilson J. in Debot, at 215, are:

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a 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? I do not suggest that each of these factors forms a separate test. Rather, … 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.

(See, also, R. v. Greffe, at 176-177.) These factors are relevant to consideration of both anonymous and, as here, known (if not identified) informants. As said in R. v. Plant, at 216, "the factors enunciated demonstrate principled concerns with the use of informants in general".

58It is immediately clear that the probative force of the ITO – indeed, the question of whether there exists reasonable and probable grounds upon which the issuing justice could have issued the warrant – is now effectively borne by CI#1. Was the information s/he conveyed to the police compelling? Was s/he credible? And was the information s/he provided corroborated?

59The compelling-ness of information provided by a confidential informant rests largely on its detail, its specificity and the source of the informant's knowledge (ideally, direct or first-hand observation). Here, the informant includes relatively specific information about the location of the applicant's home, the make and colour of his car and his physical description. (I dare say that any of my neighbours could summon equally detailed – and readily confirmable – information about me.) In addition, however, the informant reports quite particular detail about the nature of the applicant's alleged heroin business, the fact that he is "presently wanted … for uttering threats on his previous girlfriend", and a further "detail" that remains otherwise redacted. S/he also refers to a second location associated with the applicant. His or her information pertaining to the specific objective of the search warrant also remains redacted and, accordingly, is beyond the scope of permissible comment in this ruling beyond indicating that it includes at least some detail. In addition, I think it safe to say that, if found reliable, the currency of the evidence attributed to CI#1 would not pose a problem in any issuing justice's assessment of the requisite grounds. On the other hand, at no point does the affiant assert that the informant was ever inside the applicant's house, the very "place" for which the authorization to search is sought.

60The credibility of CI#1 is more problematic. S/he is not, as it is sometimes put, "a known credible source". The informant had no "track record" with the police. As earlier noted, his or her "claim to have provided information to the police in the past is unconfirmed" as is a facially specific "detail" s/he provided. S/he received some consideration for the information provided to the police. Other than an absence of convictions for that very narrow category of "offences relating to lying to the Police", the informant's criminal record is undisclosed but, as I have earlier suggested, some criminal antecedents can be reasonably surmised. Although likely attributable to the affiant's obligation to scrupulously protect the informant's identify, other than a purely conclusory statement no information is provided regarding the informant's life-style, history, source of income or, perhaps most importantly, the grounding for the informant's purported knowledge of the applicant. In short, there is no basis in the ITO to assume or infer the reliability or creditworthiness of the informant. That assessment ultimately rests on the final consideration, the nature and extent of the police corroboration of the information provided by CI#1.

61In his "Canadian Search Warrant Manual 2005", Scott Hutchison, at pp. 123-124, plainly sets out the role of corroboration in the assessment of the information provided by a confidential informant:

The best way for an officer to bolster the value of tipster/confidential informer is to find other material, either in the existing file or from further investigation, that corroborates material elements of what the informer has told the police. This is the one aspect of the informer's evidence that the officer has any control over – the officer cannot make the source more credible or make the information more compelling, but investigation can confirm what the source has said.

… There must be something more than confirmation of innocent facts which might be readily known. This is not to say there must be confirmation of other directly inculpatory evidence, but it does mean that something more than superficial confirmation is needed.

See, also, R. v. Lewis.

62Here, the corroboration advanced in aid of CI#1's reliability never significantly rises above the "superficial confirmation" of "innocent facts": the location of the applicant's home, the make and model of his car, and his physical description. Other than the somewhat mistaken (and left uncorrected) reference to the applicant being "wanted" for threatening his previous girlfriend, there is nothing in the now-edited ITO before me that substantively corroborates the informant. More specifically:

• There is no confirmation that the applicant is now or has ever been a heroin trafficker. The applicant's corrected record, while lengthy and diverse, includes a single, undated and otherwise unparticularized drug-related offence. Despite its potential for confirmation, the police appear to have made no effort to corroborate the informant's evidence respecting the applicant's alleged heroin dealing or, at least, none is reported.

• There is no confirmation of the alternative address to which the applicant is said to be associated.

• There is no confirmation of the applicant's involvement with a handgun.

• There is no confirmation of the information respecting the applicant's physical "living arrangement".

63I am sympathetic to the challenge faced by an affiant who must honour his or her duty to protect a confidential informant while still affording sufficient information in an ITO to both substantiate the issuance of a search warrant and survive a Charter review on a redacted or judicially summarized record. The task is even more daunting where, as in the case before me, the informant is not only subject to the rule in Leipert but, in addition, is of unknown credibility. It appears to me that the key, as suggested by Hutchison, is to investigate the independently confirmable material claims of the informant to thereby test his or her otherwise undetermined reliability.

64The evidence, if such it is, provided by the confidential informant CI#1 in this case is, in itself, not materially compelling. The informant's credibility is not only unknown but, on the information provided in the ITO, suspect. And, finally, I am of the view that the police corroboration in this instance, as set out in the edited ITO before me, does little to foster confidence in the veracity of CI#1 or the material "facts" attributed to him or her. Applying Debot, I cannot find that the "totality of the circumstances" amounts to those objectively "reasonable grounds to believe" necessary to authorize the search warrant sought or, more to the point on this review, that any issuing justice could have come to any different conclusion than my own. Accordingly, it must be set aside.

65(Although only in passing, I note that no warrant was sought to search for heroin at the applicant's home. No explanation is provided for why a firearm is the sole investigative target. It may well be that this reflects the affiant's acknowledgement of CI#1's doubtful credibility and his recognition that, absent evidence confirming CI#1's allegations respecting the applicant's involvement in heroin trafficking, there were no probable grounds to secure judicial authorization for a drug-focused search warrant. In my view, of course, the integrity of the application to search for a firearm is similarly compromised once the evidence attributed to Lisa/CI#2 is excised from the ITO as CI#1's assertion that the applicant ever possessed a firearm is then equally uncorroborated.)

(c) In the Alternative: Proof of "Place" as an Essential Component of a Valid Search Warrant

66As I have endeavoured to demonstrate, the doctrine of amplification is not so elastic to as permit incorporation of the extensive additional factual material urged by the respondent Crown for purposes of an ITO sufficiency review. However, even if such amplification was permitted, I do not believe that the resulting affidavit would pass s. 8 muster.

67In its seminal 1984 decision of Hunter v. Southam, at 168, the Supreme Court authoritatively held that:

In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure. [Emphasis added.]

The evidentiary burden that must be met with respect to these essential elements is also long settled. As said by the Supreme Court, "the appropriate standard is one of 'reasonable probability'" (R. v. Debot, at 213) or, as it is often expressed, "credibly based probability" (Hunter v. Southam). Applying this essential standard to the evidence set out in the original ITO (or the ITO as amplified in the manner proposed by the Crown), I can find no basis for concluding that, in the language of s. 487 of the Criminal Code and as tracked in the Warrant to Search, there are "reasonable grounds to believe" that the targeted firearm and ammunition could be found at the particularized address on Howland Avenue in Toronto said to be the applicant's home. While the affiant avers that he "firmly believe[s] that the firearm will be at the place to be searched", he affords no objective basis for his conviction, nor, in my view, does any emerge from the ITO.

68(Although it need form no part of my decision respecting this alternative basis for invalidating the search warrant before me, I note that the cover or face page of the ITO and Warrant to Search respecting the second warrant issued on June 24, 2011 – that for the applicant's car – very strongly suggest that the issuance of this second warrant was founded on the same evidentiary platform as that set out in the ITO subject to my review. If so, then the degree of confidence conveyed in the affiant's ritualistic recitation of his unqualified subjective belief in the gun's presence in the residence at 91 Howland – "I firmly believe that the firearm will be at the place to be searched" – is clearly unwarranted. The foundation for his concurrent applications more accurately reflects locational alternatives, or even a coin-toss, than a genuine expression of personal conviction predicated on credibly based probability. Only a single weapon was sought and, consistent with the current laws of physics, it could not simultaneously have been in two places. At highest, the affiant could have asserted that the firearm was either at 91 Howland or in the applicant's Volkswagen. This, however, is not what he told the issuing justice in the ITO subject to my review. Nor was the suspected "place" of the gun of no moment in assessing the sufficiency of the here impugned ITO: a comparison of Lisa/CI#2's and CI#1's accounts reveals a fundamental inconsistency as to the location of the gun, and the conspicuous lack of detail respecting the whereabouts of the alleged weapon in the information provided by the latter only compounds the concern.)

69Accepting, for sake of this argument alone, that the information in the ITO established to the requisite standard that the applicant committed the offence, as specified, of possession of an unauthorized firearm and that he resided at the targeted address on Howland, there is, in my view, still no evidentiary foundation from which to reasonably infer that the weapon could be found in that location. CI#1 never asserts that he saw a firearm (or any other weapon) at the Howland address. (Indeed, as earlier noted, there is no avowal that he was ever inside those premises.) Nor does he assert that the applicant – or anyone else, for that matter – ever advised him that he maintained a gun at that address. Lisa/CI#2 never mentions the applicant's home or its location, reporting only that the applicant, while he was in the vicinity of her home, showed her a gun that he maintained in the glove compartment of his car – and all this close to three months prior to the time the ITO was drafted. Nor does the affiant tender any other evidence, from any source, placing the targeted firearm at the applicant's residence on Howland.

70It is tempting to reason that those who possess illegal firearms keep them close at hand and, in particular, with them in their homes when they are within their confines. I note, however, that neither CI#1 nor Lisa/CI#2 make this allegation and the affiant never expressly draws or even invites the inference, nor does he assert such generalization. Importantly, the Supreme Court has strongly cautioned against this manner of stereotypical inference-drawing in ITO sufficiency assessments. The words of Fish J. for the majority in Morelli, at para. 81, are here particularly apt:

[I]t is not the role of courts to establish by judicial fiat broad generalizations regarding the "proclivities" of certain "types" of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard — in this case, reasonable and probable grounds for belief. … [M]oreover, courts must be particularly wary of endorsing such generalizations when, as in this case, the crime alleged is the subject of intense emotional responses and widespread condemnation, and the temptation to rely on stereotype rather that evidence is therefore especially dangerous and strong.

71Accordingly, on consideration of the un-excised (or fully amplified) ITO, I find the search warrant defective on this independent basis as well. Lisa/CI#2 says nothing about a gun being at the Howland address. CI#1 makes no claim to ever seeing it there and, in any event, the material confirmation mandated by his unknown (indeed, doubtful) credibility is lacking. The issuing justice, in my respectful view, "could" not have issued the warrant as the ITO simply fails to establish any "reasonable grounds to believe" that "evidence [of a firearm is] to be found at the place of the search".

72As should be immediately apparent, the absence of probable cause to issue a warrant for the specified Howland address is even more obvious and pronounced upon a sufficiency review founded on the excised version of the ITO I have earlier discussed.

(d) Result

73In the result, and on two independent bases, I find that the impugned search warrant was improvidently issued and must be set aside. Accordingly, and for one or both reasons, the search and seizures that followed its issuance were conducted without benefit of proper prior judicial authorization and thus amount to infringements of the applicant's right to privacy. Put more simply, as in Morelli, at para. 97: "Because the warrant should not have issued, the subsequent search violated s. 8 of the Charter".

(e) Section 24(2) and the Question of Remedy

74In R. v. Grant, the Supreme Court reformulated those factors, and their balancing, involved in deciding whether to exclude evidence seized as a result of a breach of an accused's constitutionally protected rights. As summarized at para. 71 of that decision:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

I address each of these three lines of inquiry in turn. Although primarily directed to the sufficiency analysis founded on the excised record, my comments regarding the question of remedy are of general application as the affiant's misstatements and material omissions affect either approach to my finding of invalidity.

75The first of the Grant factors focuses on "the seriousness of the Charter-infringing state conduct". The conduct at issue is that of the affiant in drafting the ITO. As I have already found, the affiant improperly departed from his fundamental obligation to set out his grounds in a full, frank and fair manner. He omitted material facts that bore on the credibility of one source and the reliability of the evidence attributed to her. He disguised the same source as a confidential informant when this was not her legal character. He failed to correct known misinformation and strategically fudged his averments respecting the criminal records of both the applicant and the single legitimately confidential informant. Given the information known or immediately accessible to him, the affiant's recitation of the material facts was incomplete, lacking in candour and, ultimately, misleading in its effect. It does not equate with that level of good faith that must accompany the execution of an ITO.

76Even if mere carelessness, a lack of appropriate attention "on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of [the infringing state conduct] spectrum": R. v. Dhillon, at para. 51. In my considered view, the affiant's apparent lack of concern for his legal obligations reflects more than mere carelessness, indifference or inadvertence; it amounts to serious disregard of long-settled constitutional norms and, accordingly, argues strongly in favour of exclusion. In the end, no matter how dedicated to the protection of individual rights, an issuing justice is entirely dependent on the quality of the untested affidavit put before him or her.

77The impact of the breach on the applicant's Charter-protected interests – the second Grant factor – also weighs against admission of the seizures. A person's home is one of the most assiduously protected zones of privacy. In R. v. Silveira, at para. 140, the Supreme Court commented that "[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'". The Supreme Court has consistently re-affirmed this fundamental proposition: see R. v. Evans, at para. 42; R. v. Feeney, at para. 43; R. v. Tessling, at paras. 19-22; R. v. Morelli, at paras. 104-105 and 109; and R. v. Côté, at para. 85.

78The gun, ammunition and drugs found during the search are all real and reliable items of evidence, the exclusion of which will almost certainly terminate the prosecution of the applicant. Accordingly, the third consideration – "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion" – supports reception of this evidence: Grant, at para. 79-81. The gravity of the charges faced by the applicant as a result of the seizures is also a factor to be considered but, as the Grant court commented, at para 84:

[W]hile the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. … [I]t is the long-term repute of the justice system that is s. 24(2)'s focus. … Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [Emphasis added.]

The "penal stakes for the accused are high" indeed in the case before me.

79A balancing is essential to resolving the tension between these various tines of inquiry. As said in Grant, at paras. 82 and 85:

The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": R. v. Mann, at para. 57.

To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

80In my view, the first two branches of the mandated inquiry – the seriousness of the Charter-infringing state conduct and its impact on the applicant's Charter-protected interests – here persuasively favour the remedy of exclusion on a balancing of the relevant considerations. Adopting the language of the Court of Appeal in R. v. Blake, at para. 33, I here find such

… taint of impropriety, or … inattention to constitutional standards, in the police conduct … to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests.

As in R. v. Dhillon (Ont. C.A.), at para. 61, the affiant's manner of crafting the ITO "is conduct from which the court should be concerned about dissociating itself". R. v. Hosie, at 400, is to similar effect:

The courts should not be seen as condoning the use of language in search warrants which masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the state's interest in detecting crime outweighs the individual's privacy interest in his or her own home.

81Long before the Supreme Court's reformulation of s. 24(2), the Court of Appeal, in R. v. Sutherland, at para. 33, ordered the exclusion of evidence as the result, as here, of a s. 8 breach founded in large part on material misstatements in an ITO that resulted in seizures of "sizeable quantities of drugs and weapons [w]ithout [the] evidence [of which] there can be no convictions". In words that resonate with the Charter values that imbue the Grant decision, the Court held:

To some extent, whenever a guilty person evades conviction because of a Charter breach the administration of justice suffers. However, a balance must be found when Charter breaches are exposed in court to assure that innocent persons do not suffer by repetition of the breach. When the conduct of the police, who form an integral part of the administration of justice, falls below the expected standard, the protection of the public by the justice system suffers.

See, also, R. v. Burlingham, at 408, where the Supreme Court stated that, "the goals of preserving the integrity of the criminal justice system, as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2)."

82Unsurprisingly, the Grant-instructed objective of the final s. 24(2) balancing mirrors the language of the provision itself: a cumulative assessment of the effect of admission or exclusion on the repute of the administration of justice. In Morelli, at paras. 102 and 108-112, Justice Fish eloquently addressed these concerns in the summation paragraphs of his majority opinion:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

In balancing the [three] considerations, we are required by Grant to bear in mind the long-term and prospective repute of the administration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.

In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued.

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.

I reach the same conclusion with respect to the proper disposition of the s. 24(2) application before me.

E. CONCLUSION

83Consistent with these reasons, I order the evidence seized at the applicant's home excluded from his trial.

84Finally, I am sincerely grateful to counsel for the civil and highly professional manner in which they conducted this somewhat pioneering application.

Decision Released on November 14, 2012

Reasons Released on November 27, 2012

Justice Melvyn Green